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r[fip 


I^^EGLIGEXCE 


OF 


IMPOSED  DUTIES, 


PERSONAL. 


BY 


OHAELE^S   A.  RAY,   LL.  D., 

EX-CHIEF   JUSTICE   OP 
THE   SUPKEME  COURT  OP  INDIANA- 


ROCHESTER,    N.  Y. 


The  Lawyeks'  Co-Operative  Publishin"g  Company. 

1891. 


K9I 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  ninety-one,  by 

THE  LAWYERS'  CO-OPERATIVE  PUBLISHING  CO., 

In  the  OflQce  of  tha  Librarian  of  Congress,  at  Washington,  D.  C. 


E.  R.ANDREWS,  PRINTER,  ROCHESTER,  N.  Y. 


DEDIOATIOK 


James  S.  Frazer  and  Bexjamix  HARRisoisr 

Have  united  with  the  author,  that  thus  the  survivors,  late  Justices 

and  OflBcer  of  the  Supreme  Court  of  Indiana,  privileged 

to  have  been  the  official  associates  and  personal 

friends  of  the  late 

JEHU  T.  ELLIOTT  and  ROBERT  C.  GREGORY,  Justices, 

AND 

LAZARUS  NOBLE,  Clerk  of  the  Court, 

May  dedicate  to  them  this  work  as  a  memorial  tribute  of  veneration 

and  affection. 


PEEFAOE. 


The  law  imposes  many  duties  upon  the  individiial,  which  he  is 
not  conscious  of  having  voluntarily  assumed.  When  one  under- 
takes to  act  as  the  agent  of  another,  or  takes  upon  himself  the  more 
public  occupation  of  a  common  carrier,  he  understands  that  there 
are  duties  attached  to  these  offices  —  duties  toward  the  principal, 
or  obligations  toward  the  public.  But  in  the  exercise  of  our  per- 
sonal rights,  we  are  not  always  mindful  of  the  rights  of  others, 
which  we  negligently  invade  in  the  enforcement  of  our  own.  The 
reason  for  the  imposition  of  the  particular  duty  toward  another, 
which  may  be  involved  in  the  exercise  of  each  personal  right,  and 
the  consequences  which  follow  the  negligent  discharge,  or  the  entire 
failure  to  attempt  the  performance,  of  such  duty,  will  not  be  found 
in  any  one  division  of  the  law.  It  would  seem,  therefore,  a  con- 
venience to  the  legal  profession,  that  the  duties  which  are  con- 
stantly demanding  our  attention,  the  law  imposing  them,  and  the 
consequence  of  their  neglect,  should  be  presented  together,  so  far 
as  it  can  be  done  in  reasonable  space.  The  attempt  to  do  this 
results  in  this  book.  The  chapter  titles  indicate  the  method 
adopted,  while  the  section  titles  specify  with  still  more  precision 
the  matter  treated. 

EocHESTER,  N.  Y.,  July,  1891. 


TABLE  OF  CONTENTS. 


PART     I.     Land;  Duties  Respecting  and  Rights  Therein. 
PART    II.     Waters;  Duties  Respecting  AND  Rights  Therein. 
PART  III.     Personal  Property;  Duty  of  Care  in  its  Con- 
trol.— Fire. 


PART  I. 

LAND ;  DUTIES  RESPECTING  AND  RIGHTS  THEREIN. 

CHAPTER  I. 

ORIGIN  AND  NATURE  OP  IMPOSED  PERSONAL  DUTIES. 

Sec.    1.  Imposed  at  Common  Law  and  by  Statute. 

Sec.    2.  The  Permanence  and  Purpose  of  the  Common  Law. 

Sec.    3.  Absolute  Duties. 

CHAPTER  II. 

NEGLIGENCE  IN  THE  EXERCISE  OF  RIGHTS. 

Sec.    4.  Duties  Attendant  upon  the  Possession  of  Rights  and  the  Ownership 
of  Property. 

a.  Nuisances. 

b.  Intention  to  Cause  Injury. 

c.  Proof  of  Intention  to  Injure  not  Always  Required. 

d.  Intention  Sometimes  Essential  to  be  Shown. 

e.  Placing  Spring  Guns  or  Traps  or  Keeping  a  Ferocious  Animal 

upon  One's  Land. 

CHAPTER  III. 
INJURY  TO  LICENSEE  OR  INTRUDER  ON  PREMISES. 

Sec.    5.  Duty  of  Keeping  Premises  Safe  for  Those  Who  Enter  on  Invitation 

upon  One's  Land. 
Sec.    6.  Must  Avoid  Affirmative  Negligence  toward  Licensee. 
Sec.    7.  Actual  or  Constructive  Intent  to  Injure  Intruders  must  Appear. 
Sec.    8.  Duty  of  Occupier  of  Premises  Adjoining  Street. — Attracting  Children 

from  the  Public  Street,  or  Adjacent  thereto,  into  Danger. 


Vm  TABLE   OF   CONTENTS. 

CHAPTER  lY. 

NEGLIGENT  ACT  CONSTITUTING  A  NUISANCE. 

Sec.    9.  Care  Required  where  the  Act  if  Unauthorized  would  be  a  Nuisance. 
Sec.  10.  Liability  where  Duties  are  Transferred,  the  Doing  of  Which  Consti- 
tutes a  Nuisance. 

CHAPTEE  Y. 

NUISANCES,  OWNER  OR  OCCUPIER;  HIGHWAYS. 

Sec.  11.  Liability  of  Owner  or  Occupier  of  Premises  for  Nuisance  thereon  and 
for  Acts  of  Negligence. 

a.  Owner  or  Tenant  Creating  a  Nuisance  and  Demising  or  Under- 

leasing the  Premises. — Use  as  a  Nuisance. 

1.  Owner  Creating  or  Purchaser  or  Devisee  Continuing  Nui- 

sance. 

2.  Nuisance  Occurring  during  Term  of  Lease.— Covenant  to 

Repair. 

b.  Higliways. 

c.  Encroachments  upon  Highways. — Nuisances. 

d.  Public  Nuisances  on  Highways. 

e.  Public  Nuisances;  Abatement  thereof. 

f.  Injunction  to  Restrain  Nuisances  in  Streets. 

CHAPTER  Yl. 

INVASION  OF  EASEMENT  IN  STREET. 

Sec.  12.  Private  Right  of  Action  for  Injury  to  Easement  in  Highway. 

a.  Easement  of  Lot  Owner  in  Street. 

b.  Street  Railroad. — Grant  of  Privilege. 
0.  Steam  Street  Railroad.— Excluded. 

d.  Permitted. 

e.  Fee  of  Street  on  the  Public. — Release. 

f.  Electric  Motors. 

g.  Telegraph  and  Telephone  Poles. 

h.  Drains  and  Electric,  Gas  and  Water  Conductors. 

CHAPTER  YII. 

RIGHTS  OF  PUBLIC  IN  HIGHWAY. 

Sec.  13.  Negligence  Creating  Nuisance  in  Highway. 

a.  Permitting  Street  Obstruction  for  Building  Purposes. 

b.  Permitting  Use  for  Business  Purposes  and  Pleasure. 

c.  Owner  of  Property  on   Street    must  not  Create  Nuisance   in 

Highway. 

d.  Erecting  Buildings  and  Making  Them  Secure. 

e.  Building  Rendered  In.secure  by  Act  of  Stranger. 

f.  Snow,  Ice  or  Materia!  Falling  from  Roof. — Repairing  Buildings. 

g.  Aperture  in  Sidewalk. 


TABLE   OF   CONTENTS.  IX 

CHAPTER  VIII. 

IMPERILING  SAFETY  OF  TRAVELERS. 

Sec.  14.  Negligence  Causing  Injury  to  Traveler. 

a.  Excavating  in  or  near  Highway. 

b.  Falling  of  Fence  or  Limbs  of  Trees. 

c.  Private  Sewerage. 

d.  Liability  for  Injury  to  Traveler  and  Care  Required  from  Him. 

CHAPTER  IX. 

WHEN  PROOF  OF  NEGLIGENCE  REQUIRED. 

Sec.  15.  Injury  from  Unusual  Cause,  not  in  Itself  a  Nuisance,  Requires  Proof 

of  Negligence  also. 
Sec.  16.  The  Cause  of  an  Injury  may  Create  a  Presumption  of  Negligence  in 

the  Person  Setting  It  in  Motion. 

CHAPTER  X. 

ORIGIN  AND  DEFINITION  OF  EASEMENTS  AND  SERVITUDES. 

Sec.  17.  Easements  and  Servitudes. 

a.  Defined. 

b.  How  Created. 

1.  By  Express  Grant. 

2.  By  Implied  Grant. 

3.  By  Prescription;  Light,  Air. 

4.  By  License;  Estoppel. 

5.  By  Custom. 

CHAPTER  XL 

LATERAL  SUPPORT  TO  SOIL  AND  PARTY-WALL. 

Sec.  18.  Reciprocal  Easement  of  Lateral  Support. 
Sec.  19.  Party-Wall. — Easement  of  Support. 

a.  Title  in  Party-Wall  and  Right  to  Strengthen  and  Elevate. — 

Contribution  for  Repair. 

b.  Destruction  of  Party-Wall. 

c.  Covenants   Respecting  Party-Walls. — Personal   Covenants  and 

Those  Running  with  the  Land. 

d.  Liability  for  Accidental  or  Negligent  Injury  in  Constructing, 

Elevating  or  Repairing  Party-Wall. 

CHAPTER  XII. 

USE  AND  NEGLIGENCE  AS  AFFECTING  EASEMENTS. 

Sec.  20.  Use  to  Create  Prescription. 

Sec.  21.  Extent  of  Presumed  Right  Limited  by  User  on  Which  Presumption 

Rests. 
Sec.  22.  Negligence  as  Affecting  Easements. 

a.  Negligent  Failure  to  Discover  Continuous  or  Apparent  Easement. 


TABLE   OF    CONTENTS. 

b.  Negligence  in  the  Use,  or  in  Interrupting  the  Exercise,  of  an 

Easement. 

1.  In  a  Way. 

2.  In  Light. 

3.  In  Water  Naturally  or    Artificially  Flowing.— Harvesting 

Ice. 

c.  Identity  of  Use. 

d.  Appropriating  for  an  Easement. 


PART  II. 

WATERS;   DUTIES  RESPECTING  AND  RIGHTS  THEREIN. 


CHAPTER  XIII. 

RIGHTS  AND  WRONGS  IN  SURFACE  WATERS. 

Sec.  23.  Surface  and  Percolating  Water  and  Artificial  Drainage. 

Sec.  24.  Pollution  of  Underground  Currents,  Springs  and  Streams. 

Sec.  25.  Distinction  between  the  Rights  in  Surface  and  Subterranean  Waters. 

Sec.  26.  Duty  of  Municipal  Corporations,  as  Owners  of  Streets,  Alleys  and 

Parks,  not  to  Cast  the  Filth  of  Their  Sewers  upon  Other  Lands. 
Sec.  27.  Injunctions  to  Prevent  Pollution  of  Waters. 
Sec.  28.  Right  of  Land  Owner  to  Control  Mere  Surface  Waters  or  Superficially 

Percolating  Waters. 

CHAPTER  XIY. 

CARE  OP  SURFACE  WATER  IN  CITIES. 
Sec.  29.  Duty  of  Owner  of  City  Lots  Regarding  Surface  or  Percolating  Water. 

Sec.  30.  Duty  of  City  in  Controlling  Surface  and  Percolating  Water  and  in 

Supplying  Water  Artificially. 
Sec.  31.  Negligence  in  Adopting  Plan,  or  in  Its  Execution,  or  in  Care  of 

Gutters  and  Drains. 

CHAPTER  XY. 

NEGLIGENCE  OF  TOWNS  AND  CITIES  IN  CONTROL  OF  SURFACE 

WATER. 

Sec.  32.  Under  What  Circumstances  City  will  be  Liable. 

Sec.  33.  The  Rule  of  Liability  in  New  England. 

Sec.  34.  Limited  Liability  of  Unincorporated  Town  or  Village. 

CHAPTER  XYI. 

NAVIGABLE    WATERS;  NEGLIGENCE    IN    ADMIRALTY;   RIGHTS 
AND   THEIR  EXERCISE. 

Sec.  35.  Watercourses,  Lakes  and  Ponds. — Easements  Therein. 
Sec.  36.  Riparian  and  Littoral  Rights. 

Sec.  37.  Rule  as  to  Contributory  Negligence  in  Admiralty  Jurisdiction, 
a.  Negligence  Defined. 


TABLE   OF   CONTENTS.  XI 

b.  Slight  Negligence. 

c.  Ordinary  Negligence. 

d.  Gross  Negligence. 

e.  Contributory  Negligence  and  Proximate  Cause. 

f.  In  Admiralty  Jurisdiction. 

Sec.  38.  Navigable  Waters  within  the  Jurisdiction  of  Admiralty. 
Sec.  39.  Navigable  Waters;  Tidal  Streams. 

CHAPTER  XYII. 

TITLE  TO  AND  LIABILITY  FOR  OBSTRUCTIONS  IN  WATERS. 

Sec.  40.  Non-Tidal  Navigable  Rivers, 

Sec.  41.  Title  of  the  National  or  State  Government  in  the  Seashore  and  in  the 
Banks  and  Beds  of  Tidal  Streams. — Title  of  Riparian  Owner. 

CHAPTER  XVIII. 

NAVIGABLE  WATER  FRONT— CONTROL  AND  CARE  THEREOF. 

Sec.  42.  Control  of  Municipal  Corporation  over  Shores  and  Banks  of  Navi- 
gable Waters. — Duty  of  Care  of  Structures  thereon. 
Sec.  43.  Title  to  Lands  Conveyed  along  a  Water  Front. 
Sec.  44.  Alluvion,  Accretion  and  Dereliction. 

CHAPTER  XIX. 

FLOATABLE  AND  NAVIGABLE  STREAMS— USES  AND  ABUSES. 

Sec.  45.  Floatable  and  Private  Streams. — Title  of  Riparian  Owner. — Reason- 
able Use. — Dams  and  Mills. — Log  Driving. 

Sec.  46.  Easements  in  Rivers,  Streams  and  Ponds  Acquired  by  Grant. — Parol 
License. 

Sec.  47.  Where  It  is  Uncertain  whether  the  Grant  Limits  the  Quantity  of 
Water  or  the  Class  of  Machinery,  the  Limit  will  be  Applied  to  the 
Water. 

Sec.  48.  Easement  in  Flowing  Water  Acquired  by  Prescription. 

CHAPTER  XX. 

NEGLIGENTLY    PERMITTING    ESCAPE    OR    USE    OF    RUNNING 

WATER. 

Sec.  49.  Liability  for  Injury  from  Permitting  the  Escape  of  Water. 
Sec.  50.  The  Right  to  Divert  Water  from  a  Stream. 
Sec.  51.  Riparian  Rights  in  Pacific  States. — Diversion. 
Sec.  52.  Use  of  Waters  to  Supply  Cities. 

CHAPTER  XXI. 

REMEDY  FOR  DIVERSION  OR  OBSTRUCTION  OF  WATERCOURSE. 

Sec.  53.  Remedy  for  Diversion  of  Flowing  Water. 

Sec.  54.  Obstructions  of  the  Flow  of  Waters. — Bridges  over  Flowing  Waters. 

Sec.  55.  Relief  in  Case  of  Obstruction  to  Flow  of  Stream. 

a.  By  Indictment  or  Information. 

b.  Individual  Right  to  Abate. 

c.  Private  Right  of  Action  for  Obstructing  Watercourse. 

d.  Jurisdiction  of  Equity  over  Obstruction  of  Flowing  Water. 


Xll  TABLE    OF    CONTENTS. 

CHAPTER  XX IL 

FERRIES— RIGHTS  AND  LIABILITIES  IN. 

Sec.  56.  Ferry  Franchise. — Origin. 
Sec.  57.  Ferry  a  Public  Highway. — When  Exclusive. 
Sec.  58.  Assignment  of  Ferry  License.— Forfeiture, 
Sec.  59.  Ferryman  a  Common  Carrier. — Liability. 

CHAPTER  XXIII. 

FISHERIES  AND  HUNTING  PRIVILEGES. 

Sec.  60.  Fishing  Privileges  a  Property  Right  of  State  Citizenship. 

Sec.  61.  Usage  as  Affecting  Fishery  Rights. 

Sec.  62.  Fishery  Rights  Common  to  All  or  Vested  in  Individuals. 

Sec.  63.  Private  Fisheries. 

Sec.  64.  Restrictions  upon  Fishing  and  Hunting  Rights. 

Sec.  65.  Game  and  Forestry  Laws. 

Sec.  66.  Distinction  between  Navigable  Rivers  and  Mere  Logging  Streams  as 

Affecting  Fishing  and  Hunting  Rights. 
Sec.  67.  Regulation  of  Fisheries  by  Statute. 
Sec.  68.  Destruction  of  Nets  Illegally  Used. 
Sec.  69.  Oyster  Fisheries. 

Sec.  70.  Injury  to  Fishery  by  Negligent  Navigation. 
Sec.  71.  Protection  and  Propagation  of  Fish. 
Sec.  72.  Statutes  for  the  Preservation  of  Game. 

CHAPTER  XXIY. 

USE  OF  RIVERS;  MILL  OWNERS;  BOOM  COMPANIES;  WHARVES. 

Sec.  73.  Upper  and  Lower  Mill  Owners. — Negligence. 
Sec.  74.  Floatage  of  Logs. — Negligence. 

a.  Boom  Companies. — Duties  and  Liabilities. 

b.  Compensation  for  Driving  Logs. 

c.  Intermingling  and  Confusion  of  Logs. 
Sec.  75.  Wharfage  and  Wharves. 

a.  Unlawful  Interference  with  Approach  to  Wharf. 

b.  Wharf  Rights. — Public  and  Private  Landings. 

c.  Liability  of  Wharf  Owner  or  Occupier. 

d.  Wharfage  Fees  and  Charges. 

CHAPTER  XXY. 

EXTINGUISHMENT  OF  EASEMENTS. 

Sec.  76.  How  Easements  are  Extinguished. 

a.  By  Release. 

b.  By  Merger. — Union  of  Titles.— Natural,  Necessary  and  Appar- 

ent Easements  not  Lost. 
0.  Where  Usefulness  of  Easement  Ceases. 

d.  Exercise  of  Rights  Suspended  by  Superior  Power. 

e.  Renunciation  or  Abandonment  by  Encroachment  on  Easement. 

f.  Abandonment  of  Easement  a  Question  of  Fact  and  Intention. 

g.  Adverse  User  to  Extinguish  Easement. 

h.  Extinguishment  of  Prescriptive  Easement. — Admissions. 


TABLE    OF    CONTENTS.  Xlll 

PART  III. 

PERSONAL  PROPERTY,   DUTY  OF  CARE  IN  ITS  CONTROL:    FIRE. 


CHAPTER  XXYI. 

DOMESTIC  ANIMALS. 

Sec.  77.  Care  Required  of  Owners  of  Macliinery. 
Sec.  78.  Duties  Imposed  upon  the  Owners  of  Animals. 

a.  At  Common  Law  the  Owner  must  Keep  his  Cattle  on  His  Own 

Land. — Fences. 

b.  Statutes  Requiring  Land  Owner  to  Fence  against  Trespassing 

Domestic  Animals. 
0.  Fence  must  not  be  a  Source  of  Danger  to  Cattle  in  Adjoining 
Field  or  Highway. 

d.  County  Commissioners  or  Local  Authorities  may  be  Empowered 

to  Authorize  Cattle  to  Run  at  Large. — Driving  off  Trespass 
ing  Animals. 

e.  Impounding  Domestic  Animals. 

f.  Authority  to  Impound  and  Sell  Strayed  Domestic  Animals. 

g.  Rights  of  Owner  of  Impounded  Animals. 

h.  Municipal  Ordinances  Regarding  Strayed  Domestic  Animals. 
i.  Damages^for  Trespass  of  Animals  Impounded. 

CHAPTER  XXYII. 

NEGLIGENCE  IN  CONTROL  OF  DOMESTIC  ANIMALS. 

Sec.  79.  Liability  of    Owners  of    Animals    for  their  Trespass. — Scienter. — 

Accident. 
Sec.  80.  Care  of  Domestic  Animals  under  Special  Circumstances. 
Sec  81.  Horses  Exposed  in  Public  Places. 

CHAPTER  XXYIII. 

DOGS— LIABILITY  OF  OWNER. 

Sec.  82.  Duties  Imposed  upon  Owners  of  Dogs. 

a.  Freedom  of  the  Street. — Master  not  Liable  for  Trespass  of  Dog 

on  Close. 

b.  Owner  of  Vicious  Dog. — Ground  of  Liability. 

c.  Necessary  Averments. — Proof  of  Scienter. 

d.  Harborer  of  Dog. — Unlawful  Posses.sion  of  Animal. 

e.  Where  the  Knowledge  of  Servant  will  Charge  Master. 
Sec.  83.  Protection  of  Property  in  Dogs. 

Sec.  84.  License  or  Tax  upon  Dogs. 

CHAPTER  XXIX. 

ANIMALS    FER^    NATURE    OR    WITH    CONTAGIOUS    DISEASE; 

CRUELTY. 

Sec.  85.  Keepers  of  Animals  Ferse  Naturie  of  Vicious  Instincts  in  Places  of 

Public  Resort  Liable  for  Injury  to  Others. 
Sec.  86.  Contributory  Negligence  in  Case  of  Injury  from  Animals. 
Sec.  87.  Duty  of  Owner  of  Animals  Suffering  from  Contagious  Disease. — 

Warranty. 
Sec.  88.  Cruelty  to  Animals. 


XIV  TABLE    OF   CONTENTS. 

CHAFTEE  XXX. 

NEGLIGENCE  IN  USE  OF  FIRE. 

Sec.  89.  Duty  Imposed  upon  a  Person  Using  Fire. 

a.  Statute  of  6  Anne,  Chap.  3,  Sec.  6,  the  Law  at  Present. 

b.  Duty  to  Use  Care  Proportioned  to  the  Risk  Involved. 

c.  Duty  to  Follow  Fire  on  Other  Lands  to  Extinguish  It. 

d.  Burden  of  Proof  of  Negligence. 

e.  Rulings  in  New  York  and  Pennsylvania  Courts  and  Elsewhere. 

f.  Liability  for  Fire  Indirectly  Extended. 

g.  Intervening  Cause. — Independent  Wrongful  Act  of  a  Responsi- 

ble Person. — Natural  Consequences. — Proximate  Cause, 
h.  Fire  Result  of  One  of  Two  Causes, 
i.  Statutory    Provisions    against    the   Kindling    of    Fires,    under 

Certain  Circumstances,  and  Requiring  Fire-Escapes  to  be 

Placed  upon  Buildings. 

CHAPTER  XXXI. 

NEGLIGENCE     CONTRIBUTORY    TO    INJURY    SUFFERED    FROM 

FIRE. 

Sec.  90.  Contributory  Negligence  of  Party  Injured  by  Fire. 

a.  Not  bound  to  Anticipate  Negligence. 

b.  Must  not  Create  Peril  nor  Neglect  Effort  to  Escape  Loss. 

c.  Right  to  Build  on  One's  Own  Land. 

d.  Not  Chargeable  on  Account  of  Changed  Conditions. 

e.  No  Recovery  where  Plaintiff  Consents  to  Increase  of  Danger. 

f.  Special  Acts  and  Conditions  Present  Questions  for  the  Jury, 


TABLE  OF  CASES. 


[References  are  specific  to  both  pages  and  notes.] 


Abbot  of  Ramsey's  Case,  Dyer, 

326  {b) 3995 

Abbott  v.  Kansas  City,   St.  J.  «& 

C.  B.  R.  Co.  83  Mo.  271   295' 

p.  Mills,  3  Vt.  521 791 

Abranis  v.  Hempstead  Auditors, 

45  Hun,  273 541« 

V.  Johnson,  45  Hun,  591  ..    541*^ 
Ab.sor  V.  French,  2  Shower,  28  ..    124^ 
A.  0.  Conn.  Co.   v.  Little  S.  L. 
Mfg.  Co.  74    Wis.  652 

4035.  414',  5502 

Acker  V.  New  Castle,  48  Hun,  312  305^ 
Ackerman  v.  Horicon  Iron  Mfg. 

Co.  16  Wis.  154   476^ 

Ackert  v.  Lansing,  59  N.  Y.  646.      19=* 
Acquackanonk  Water  Co.  v.  Wat- 
son, 29N.  J.  Eq.  366-.    453' 
Acton  V.  Blundell,  12  Mees.  &  W. 

324 1483,  2813,  286 

Adams  U.Adams,  13  Pick.  384 

603^  639' 

V.  Barney,  25  Vt.  225 157^ 

V.  Chicago,  B.  &  N.  R.  Co. 
39  Minn.  286,  1  L.  R. 
A.  493,  wote.ll*,  81,90',180* 
V.  Emerson,  6  Pick.  57.258^  265^ 
V.  Fletcher,  17  R.  I.  —  ..    109= 
V.  Frothingham,    3    Mass. 

352,  3  Am.  Dec.  151..   397' 

».  Hall,  2Vt.  9 5948 

V.  Harrison,  4  La.  Ann.  165  295^ 

V.  Pease,  3  Conn.  481 

.377^  416,513',  530' 

V.  Pease,  2  Conn.  481,  483, 

484 501* 

V.  Popham,  76  N.  Y.  410..     79' 
V.  Walker,  34  Conn.  466.. 

- 297^  301 

V.  Wiscasset  Bank,  1   Me. 

361,  364 3393 

«.  Young,  44  Ohio  St.  80.  3 

West.  Rep.  145  ...654',  6553 
Adkins  v.  Atlanta  &  C.  A.  L.  R. 

Co.  27S.  C.  71  655^ 


64 


372» 
595^ 
306» 


I  Adsit  V.  Brady,  4  Hill,  630 343- 

^tna  Ins.  Co.    v.  Boon,  95  U.  S. 

117,  24  L.  ed.  395  ....    658 
^tna    Mills    v.    Brookline,    127 

Mass.  69,  71.. 454^ 

V.  Waltham,  126  Mass.  423, 

435 454^ 

Agnew  V.  Corunna,  55  Mich.  428  310* 
V.  Johnson.  17  Pa.  373....    201* 
Ahem  v.  Steele,  115  N.  Y.  203,  5 

L.  R.  A.  449 

55',  56^  57,  61' 

Aitcheson,  The    Endless    Chain 

Dredge,  40  Fed.  Rep. 

253 
Akers  v.  George,"6'l''lir.  §76 .".'"" 
Akron  v.  McComb,  18  Ohio.  229. 
Alabama,  The,  93  U.  S.  695,  33 

L.  ed.763... 369' » 

Albee  v.  Huntley,  56  Vt.  457....    582' 
Albert  «.    Bleecker  St.  R.  Co.  2 

Daly,  389 612* 

V.  Northern  Cent.    R.  Co, 

98  Pa.  316 648* 

V.  State,  66  Md .  335.  6  Cent. 

Rep.447.44',48.  49'.  51',  567'' 
Albina  Ferry  Co.  v.  The  Imperi- 
al, 38  Fed.  Rep.  614, 

3L.  R.  A.  234,  Tzote... 
Albion  V.  Hetrick,  90  Ind.  546... 
Albright  v.  Penn,  14  Tex.  290... 
Albrittin   v.  Huntsville,   60  Ala. 

486.. ...342', 

Alderman  v.  Hastings,  3  Sid.  8..   498* 

Aldrich  v.  Drury,  8  R.  I.  554 265' 

V.  Midland  Blast  Furnace 

Co.  78  Mo.  559   145* 

V.  Tripp,  11  R.  L  141 31P 

V.  Wright,  53N.  H.  404... 
Aldridgo    v.    Great   Western    R 

Co.  3  Man.  &  G.  515. 
Aid  worth  ».  Lynn  (.Mass.)  10  L. 

R.  A.  310 418',  546' 

Alexander  v.  Dutton,  58  N.  H. 

383 635» 

V.  Tolleston   Club,  110  111. 

65 1598,  243\  265* 


461' 
128* 
488= 

343* 


33* 
644» 


XVI 


TABLE   OF    CASES. 


Alger  v.  Lowell,  3  Allen,  402,  405    120 
Allegheny  v.  Zininierman,  95  Pa. 

287 142,  468' 

Allen   «.  Gomme,  11   Ad.  &  El. 

759 -238-,  577« 

V.  Maine  Cent.  R.    Co.  82 

Me.  Ill 363^ 

n.    Monmouth   County,    13 

N.  J.  Eq.  68 468^ 

1}.  Onnond,  8  East,  4 575* 

1).  Sadler,  66  Miss.  221 257- 

V.  Wiilard,  57  Pa.  374 323- 

V.  Wyckoff,  48  N.  J.  L.  93, 

2  Cent.  Rep.  213 542' 

Allison  ?>.  Little,  85  Ala.  512 269' 

Allison  Mfg.  Co.  v.  McCormick, 

n8  Pa.  519,  11  Cent. 

Rep.  396 136^ 

Alpern  v.  Churchill,  53  Mich.  607, 

614_ 664',  6672 

Althorf  V.  Wolfe,  22  N.  Y.  355, 

366 1075,641* 

v.  Wolfe,  22  N.  Y.  366,  367  649^ 
Alton  «.  Hope,  68  111.  167. .  .3045,  322' 
Altoona  v.   Latz,  114  Pa.  238,  6 

Cent.  Rep.  135 129^ 

Alves  V.  Henderson,  16  B.  Mon. 

152 564' 

America,  The,  92  U.  S.  432,  23  L. 

ed.  724 369' 

American  Express  Co.  v.  People, 

133  111.  649,  9  L.  R  A. 

138 5432 

American  Print  Works  v.  LaAV- 

rence,  21  N.  J.  L.  248.   647^ 
r.  Lawrence,  21    N.  J.  L. 

248,  23  N.  J.  L.  590  .-       6' 
«.  Lawrence,  21  N.  J.  L.  257       6^ 
American    River    Water    Co.   «. 

Amsden,  6  Cal.  443... 

-- 406^  408* 

American  Teleph.  «&  Teleg.  Co. 

V.  Pearce,  71  Md.  535, 

7L.  R.  A.  200. 979 '0 

Ames  V.  Shaw,  82  Me.  379 176*  ^ 

Amethyst,  The,  2  Ware,  28,  2  N. 

Y.  Leg.  Obs.  312- 135^ 

Araick  «.  O'Hara,  6  Blackf.  258.   616' 
Ammant  v.  Pittsburgh  Turnpike 

Co.  13Serg.  &  R.  210  485^ 
Amondson  t>.  Severson,  37  Iowa, 

603, 2452 

Anderson  v.  Buckton,  1  Strange, 

192 5852,  593^ 

V.  Dickie,  1  Robt.  238 110 

•p.  Dickie,  26  How.  Pr.  105 

44'.  48',52=3 

Anderson  v.  East,  117  Ind.  126,  2 

L.  R.  A.  712,  note 

27^  104«,  156',  310^ 


Anderson  v.  Hamlin,  L.R.25  Q.  B. 

Div.  221 536« 

V.  Henderson,  124  111.  164, 

14  West.  Rep.  109.... 

281-,  2953*,  296' 

v.  Locke,  64  Miss.  283.593',  599'' 
V.  Rochester,  L.  &  N.  F.  R. 

Co.  9  How.  Pr.  553  .. 

75*,  4753 

V.  Smith,  7  111.  App.  354..   628^ 
13.  Wasatch  &  J.  V.   R.  Co. 

2  Utah,  518 648* 

V  Wilmington  (Del.)  19  Atl. 

Rep.  509.. 334' 

w.Worley,   104  Ind.  165,  1 

West.  Rep.  833 600* 

Andrai  v.  Hazelline,  58  Wis.  395 

212',  3142 

Aadrews  ■!).  Lj-ons,  11  Allen,  349   183* 
Angel  V.  Pennsylvania   R.  Co.  38 

N.  J.  Eq.  58 74' 

Angus  V.  Radin,  5  N.  J.  L.  815..   591^ 
Annapolis  &  E.  R.  Co.  •».  Gantt, 

39  Md.  115 654-^ 

Anne  Arundel  County  «.  Duckett, 

20  Md.  468... 342' 

Anonymous,  Cro.  Eliz.  10... 641*,  644' 
Anthony  «.  Adams,  1  Met.  284 . . 

336',  352* 

».  Lapham,  5  Pick.  175 443* 

Antomarchi's  Exr.  v.  Russell,  63 

Ala   356  219 

Applebee  v.  Percy,  L.  R'9"  C.  P'6'47. 

22  Week.  Rep.  704,  43 

L.  J.  N.  S.  C.  P.  365, 

30  L.  T.  N.  S.  785 

586S,  587',  605«,    620-,    625' 
Appleton  «.  FuUerton,    1   Gray, 

186. 265* 

Arabello  «.  San  Antonio  &  A.  P. 

R.  Co.  (Tex.)  11  S.  W. 

Rep.  913.... 1455 

Arbuckle  «.Ward,  29  Vt.  43 

581«,  582'2 

Arbenz  v.  Wheeling  »fe  H.  R.  Co. 

33  W.Va.  1,  5L.  R.  A. 

371 92^ 

Archer  w.  Bennett,  1  Lev.  131-.- 

174',  418^ 

Arey  v.  Newton,  148  Mass.  598..    130' 
Ariadne,  Tlie,  80  U.  S.  13  Wall. 

475,  20  L.  ed.  542  ....    369' 
Arkansas  Valley   L.   &  C.  Co.  •». 

Mann,  130  U.  S.  69,  32 

L.  ed.  854 586'^ 

Armendaiz  v.   Stillman,  67  Tex. 

458 460' 

Armstrong  v.  Cooley,  10  111.  509.   644* 

Arnold  tJ.^Cornraan,  50  Pa.  361..  5773« 

V.  Foot,  12  Wend.  330 442* « 


TABLE   OF    CASES. 


xvn 


Arnold  v.  Munday,  6  N.  J.  L.  174.   SOl^ 

V.  Norton,  25  Conn.  93 

586«.  617',  620' 

V.  Stevens,  24  Pick.  106... 

571',  580'^  58P 

Arthur  v.  Cohoes,  56  Hun,  36  ...    102= 
V.    Commercial    &    R.   R. 
Bank,  9  Smedes  &  M. 

420.. 4858 

Arundel  v.  McCuUoch,  10  Mass. 

70 470 

Ash  V.  People,  11  Mich.  347 152" 

Ashley  v.  Hart,  147  Mass.  573,  1 

L.  R.  A.  355 136^ 

V.  Port  Huron.  35  Mich.  296 

- ..291^  292^  311^322^326" 
V.  Port    Huron,   35    Mich. 

296.  24  Am.  Rep.  552.   304^ 

«.Wolcott,  11  Cush.  192  ..    300^ 

Askew  W.Wynne,  7  Jones,  L.  22.   560' 

Ashton  V.  Nolan,  63  Cal.  269 38' 

Atalanta  Mills  v.  Mason,  120  Mass. 

244 5755 

V.  Mason,  120  Mass.  251  ..   574^ 
Atchison  v.  Challiss,  9  Kan.  603.   330' 
«.  Challiss,  9  Kan.  612....    332' 
V.  Peterson,    87   U.    S.   20 
Wall.  507,   22  L.   ed. 

414. 445\  446* 

V.  Peterson,    87    U.    S.    20 

Wall.  510, 22  L.ed.  415  444 
Atchison  St.   R.  Co.  v.  Nave,  38 

Kan.  753. 82" 

Atchison,  T.  &  S.  F.  R.  Co.  v. 

Bales,  16  Kan.  252....    654^ 

v.  Dennis,  38  Kan.  434 647-' 

V.  Hammer,  22  Kan.  763..   295' 
Athens  Mfg.   Co.   v.  Rucker,  80 

Ga.  291 430^  435« 

Atkins  z).  Bordman,  2  Met.  457.. 
80-,  158' «,    243=,    246, 
246',    254,    258^    471^  577^ 
V.  Bordman,   2    Met.    457, 

467 265" 

V.  Bordman,  20  Pick.  291, 

2  Met.  457 577" 

Atkinson  v.  Goodrich  Transp.  Co. 

60  Wis.  141. 6542 

V.  Mott,    103    Ind.    431,    3 

West.  Rep.  307. 5992 

Atkyn  v.  Wabash  R.  Co.  41  Fed. 

Rep.  193 363^ 

Atlanta  &  West  Point  R.   Co.  v. 

Hudson,  63  Ga.  679  ..    636^ 
V.  Hudson,  63  Ga.  680.123',  597= 
Atlanta  C.  S.  Oil  Mills  v.  Coffey, 

80  Ga.  145 19^ 

Atlantic  &  P.  Teles:.  Co.  v.  Chi- 
cago, R.  i.  &  P.  R.  Co. 
6Biss.  158 97^8 


Atlas,  The,  93  U.  S.  303,  23  L. 

ed.  863 369' 

Atlas  Engine  Works  v.  Randall, 

100  Ind.  293 136^ 

Atlee  v.  Northwestern  U.  Packet 

Co.  8S  U.  S.  21  Wall. 

389,  22  L.  ed.  619  .... 

359' •-,  369",  387'  ^  390',  461' 
Atty-Gen.  •».  Birmingham,  4  Kay 

&  .J.  528. 292'.  456-^ 

V.  Boston,  123  Mass.  460..   480 
V.  Boston  &  L.  R.  Co.  118 

Mass.  345-349 390' 

9).  Boston    Wharf    Co.    13 

Gray,  553 380',  468- 

V.  Burridge,  10  Price.  350.  468- 
V.  Chambers,  27  Eng.  L.  & 

Eq.  242,  4  DeG.  M.  & 

G.  206 378« 

V.  Cleaver,  18  Ves.  Jr.  211  468- 
V.  Cohoes  Co.  6  Paige,  133, 

3N.  Y.  Ch.  L.W.  928  468- 
V.  Delaware  &  B.  B.  R.  Co. 

27  N.  J.  Eq.  1,  631...  468= 
V.  Evart  Booming    Co.  34 

Mich.  463 405' 

V.  Evart    Booming  Co.  34 

Mich.  473. 70' 

V.  Forbes.  2  Myl.  &  Cr.  123  469= 
V.  Great  Eastern   R.  Co.  23 

L.  T.  N.  344 441= 

V.  Hunter,  1  Dev.  Eq.  12..  468^ 
V.  Jamaica  Pond  Aqueduct 

Corp.  133  Mass.  301  ..  458^ 
V.  Johnson,  2  Wils.  Ch.  87  463' 
©.  Leeds  Corp.  L.  R.  5  Ch. 

583. ...326",  327^ 

V.  Lonsdale,  L.    R.  7  Eq. 

377 468=,  469=,  492- 

V.  Lletropolitan  R.  Co.  125 

Mass.  515, 28  Am.  Rep. 

204 93=,  248= 

V.  Morris  &  E.  R.  Co.    19 

N.  J.  Eq.  386,  575 236^ 

V.  New  Jersey  R.  &  Transp. 

Co.  3  N.  J.  Eq.  136..  468= 
V.  Parmeter,  10  Price,  378, 

411 468= 

V.  Paterson  &  H.  R.  R.  Co. 

9N.  J.  Eq.  526 468= 

V.  Richards,  1  Anstr.  603..  468= 
V.  Salem,  103  Mass.  138...  468= 
1).  Terry,  L.  R.  9  Ch.423.. 

260,  46^= 

V.  Tomline,  L.   R.  13  Ch. 

Div.  214.. 468= 

V.  Utica  Ins.  Co.  2  Johns. 

Ch.  371,  383,  1  N.  Y. 

Ch.  L.  ed.  412,  418...  468' 
D.Williams.  140  Mass.  329.    253 


B 


XVlll 


TABLE    OF    CASES. 


Atty  Gen.  «.Woods,108  Mass. 436. 

;374^    380',    3813,    4051,  4922 
Atwater  v.  Bodfish,  11  Gray,  152  51B' 
V.   Canandaiffua,  56   Hun, 

293 r 308,  314 

Atwood  V.  Partree,  56  Conn.  80, 

6  New  Eng.  Rep.  465.   469^ 
Auchmuty  1).  Ham,  1  Denio,  495 

5949,  6223,624%  627' 2  5 

Aurora  v.  Bitner,  100  Ind.  396...    128' 
V.  Colshire,  55  Ind.  484...   329^ 

V.  Gillett,  56  111.  132 322' 

V.  Love,  93  III.  521 290%  327-^ 

V.  Reed,  57  111.  29 292-' 

v.  Heed,  57  111.  30 304\  322' 

Austin  ».  Carter,  1  Mass.  231 382' 

V.  Hudson  River  R.  Co.  25 

K  Y.  334 198^ 

V.  Miller,  74  N.  C.  274 639^ 

V.  Ritz,  72  Tex.  391.. .1273, 131^ 
V.  Rutland  R.  Co. 45  Vt.  215.  512' 
Austin  &  N.  R.  Co.  v.  Beatty,  73 

Tex.  592  -. 3623 

Averett  v.  Brady,  20  Ga.  523 480^ 

Avery  t\  Empire  Woolen  Co.   82 

N.  Y.  582 46P4 

V.  Fox,  1  Abb.  U.  S.  246..    377^ 
V.  Maxwell,  4  N.  H.  36...   591^ 
Aver  V.  Starkey,  30  Conn.  304...    644^ 
Ay  les  worth    v.     Herrington,    17 

Mich.  417 593 


B. 


Babbage  v.  Powers  (N.  Y.)  26  N. 

Y.  8.  R.  799. 61' 

Babcock  ».  Buffalo,  1  Sheld.  317, 

56  N.  Y.  268 292%  328^ 

V.  Herbert,  3  Ala.  392 480" 

Babson  v.  Tainter,  79  Me.  368,  4 

New  Eng.  Rep.  661    383=6  8 
Bacheldcr  v.  Hea^an,  18  Me.  32. 

1355,  645"*,  648%  649%  664' 
Bagley  ®.  Stephens,  78  Ga.  304..    269' 
Bagnall  v.  London  &  N.  W.  R. 
Co.  7  Hurl.  &  N.  423, 
affd.   in  Excb.    Ch.    1 

Hurl.  &C.  544. 273= 

Bailey  v.  Dale,  71  Cal.  34 76' 

V.  New  York,  3  Hill,  531.. 

342',  345',  432'.  439,440' ,440^ 
r.  New  York,  3  Hill,  531, 

539 3383 

V.  New  York,  3  Hill,  531,  2 

Denio,  433 272' 

V.  Philadelphia, W.  &B.  R. 

Co.  4   Harr.  (Del.)  389   359^ 
V.  Schnitzius,  45  N.  J.  Eq. 

178,  11  Cent.  Rep.  737  358' 


Bailey  v.  Schnitzius,  45  N.  J.  Eq. 

179,  11  Cent.  Rep.  737  460* 
v.  Woburn,  126  Mass,  416, 

418 45425- 

Bainbridge  v.  Sherlock,29  Ind.  364    563. 
Baird  v.  Williamson,  15  C.  B.  N. 

S.376 270%  288-' 

Bajus  V.  Syracuse,  B.  &  N.  Y.  R. 
Co.  103  N.  Y.  312,  4 
Cent.  Rep.  518.... 137%  647^ 

Baker  v.  Bliss,  39  N.  Y.  70 242' 

V.  Boston,  12  Pick.  184, 196 

....80%471» 

V.  Brown,  55  Tex.  377 

441',  442* 

V.  Byrne,  58  Barb.  438 5683 

V.  Fehr,  97  Pa.  72.... 136%  142'' 

V.  Frick,  45  Md.  337. 245'2 

«.  Bobbins,  9  Kan.  303 592'* 

Bakeman  v.  Talbot,  31  N.  Y.  366 

....243,  265* 

«.  Talbot.  31  N.  Y.  371...   243* 
Baldwin  v.  Calkins,  10  Wend.  167  428'^ 
V.  Calkins,  10  Wend.  169..    262* 
1).  Casella,  L.  R.  7  Exch.  325 

625,  625' 

■0.  Ensign,  49  Conn.  117...      70' 
V.  Goodyear,   6  Cow.    536, 

7wtea,  537-539 502* 

V.  St.  Louis,  K.  &  N.  R. 

Co.  68  Iowa,  37 137' 

Ball  V.    Grand  Trunk  R   Co.  16 

U.  C.  C.  P.  252 647^ 

a.  Nye,  99  Mass.  582 

154,  271,  271> 

V.  Nye,  99  Mass.  582,  584..  288* 
Daniel  Bali, The,  77  U.  S.  10  Wall. 

557,  19  L.  ed.999 37^ 

Bailacorkish  S.  L.  &  C.  Min.  Co. 
«.  Harrison,  L.  R.  5  P. 

C.  49. 280' 

Ballard  ».  Ballard  vale  Co,  5  Gray, 

471 573* 

V.  Harrison,  4  Maule  &  S. 

387 124* 

v.  Struckraan,  123  111.  636. 

12  West.  Rep.  785....   427« 
V.  Tomlinson,  L.  R.   29  Ch. 

Div.  115 7%  8%  278 

Ballou  V.  Hopkiuton,  4  Grav,  324  456* 
Baltimore  v.  Marriott,  9   Md.  160  247^ 
V.  O'Donnell,  53   Md.  110.       37 
V.  Warren  Mfg.  Co.  59  Md. 

96 8- 

Baltimore  &  C.  V.  R.  E.  Co.  v. 
Duke,  129  Pa.  422.... 

89%  90%  921 

Baltimore  «fc  L.  Turn  p.  Co.  v. 
Casswell,  66  Md.  419, 
6  Cent.  Rep.  462 127* 


TABLE    OF    CASES, 


XIX 


Baltimore  &  O.  R  Co.  v.  Boteler, 

38Md.  5G8. 118 

V.  Chase,  43  3Id.  23..--359^  397^ 
T.  Noell,  32  Gratt.  394....  155- 
V.  Rose,  65  iMd.  485,  3  Cent. 

Rep.  724 193,  104^ 

Baltimore  &  P.   R.  Co.  v.  Fifth 

Baptist     Church,    108 

U.  S.  317,  27  L.  ed.  739 

...10' \  823,  320',  332%  6643 

t.  Reaney,  42  Md.  117... 

.38',  88",  m\  200-' 

•c.  Reaney,  42  Md.  117,  130     89' 
v.  Reaney,  42  Md.  117,  131     89' 
Baltimore  Elevator  Co.  v.  Neal, 
65   Md.    438,   3    Cent. 

Rep.  856 IW 

Bamford  v.  Turnley,  3  Best  &  S. 

66 47S« 

Bangor  v.  Laasil,  51  Me.  521 

...296«,  299 S  300- 

Bangs«.  Parker,  71  Me.  458 576^ 

Bankard  v.  Houghton,  27  Beav. 

425,  7  Week.  Rep.  197  458^ 
Bank  of  Hindustan  v.  Allison,  L. 

R.  6C.  P.  54 188* 

Banks  «.  Ogden,  69  U.  S.  3  Wall. 

57,  17L.  ed.818..397%  399'o 
Bannon  ®.  Angier,  2  Allen,  128..  5^0* 
Barber  v.  Abendroth,  102  N.  Y. 

406,  3  Cent.  Rep.  637.566'^  ^ 
Barbour  v.  Ellsworth,  67  Me.  294  335^ 
Barclay  v.  Commonwealth,  25  Pa. 

503 287- 

Barclay  R.  &  Coal  Co.  v.  Ingham, 

36  Pa.  194 4043,  4951 

Bardeu  ®,  Crocker,  10  Pick.  383 

....531",  5495 

Barker  v.  Clark,  4  N.  H.  380.169",  2363 
V.  Richardson,  4  Barn.    & 

Aid.  579... 179 

Barkley  v.  Tieleke,  3  Mont.  59...   4463 
V.  Wilcox,  86  N.  Y.  140,40 

Am.  Rep.  519 

1483,2951.2962,297" 

V.  Wilcox,   86  N.  Y.  140, 

145 2985 

«.  Wilcox,  86  N.  Y.  144...    358' 

V.  Wilcox,  86  N.  Y.  148..    300' 

Barnard  v.  Lloyd,  85  Cal.  131...    173= 

V.  Poor,  21  Pick.  378 

....64P,  6442,  6641 

V.  Poor,  21  Pick.  380.  .645%  647^ 
Barnes  v.  Chapin,  4  Allen,  444..   608' 
V.  District  of  Columbia,  91 
U.    S.  540,  23  L.    ed. 

440.... ...3283,  343' 

V.  Haynes,  13  Gray,  188.  .  188^ 
®.  Lloyd,  112  Mass.  224.. 

578%  580" 


Barnes  v.  Lloyd.  112  Mass.  231...    577' 
V.  i\[arshal],  68  Cal.  569...   461- 

i>.  Racine,  4  Wis.  454 477-' 

V.  Sabron,  10  Nev.  217 445'' 

V.  Ward,  9  C.  B.  393 

27',  41',  110', 

117,    131',    150*,    3472,   472» 
Barnett  v.  Plummer  (Pa.)  6  Cent. 

Rep.  650 163^ 

Barney  v.  Keokuk,  94  U.  S.  384, 

24  L.  ed.  224 

94',  378',  386% 

3863,  386%  397',  399'%  492-' 
».  Keokuk,  94  U.  S.  336,  24 

L.  ed.  227 372'> 

V.  Keokuk,  94  U.  S.  343,  34 

L.  ed.  229.. 377^ 

V.  Lowell,  98  Mass.  570- . 

335',  347^ 

V.  Lowell,   98    Mass.    570, 

571 - 351' 

Barns  v.  Wilson,  116  Pa.  308.  8 

Cent.  Rep.  450 207^^ 

Barnum  v.  Terpening,  75  Mich. 

557 6096» 

V.  Vandusen,  16  Conn.  300 

586%  594%  623%  633^ 

Barr  v.  Stevens,  1  Bibb,  393 

136%  475%  4788 

Barre    «.    New   Orleans,   33  La. 

Ann.  613. 397' 

Barre  Water  Co.,  Re  (Vt.)9  L.  R. 

A    195  259'' 

Barrett  «.  Dolan,  71  Iowa,  94."^!   eOO-* 
«.  Maiden  &  M.  R.  Co.   3 

Allen,  101 eSl' 

V.    New    Orleans,   13    La. 

Ann.  105 397' 

V.  Third  Ave.  R.  Co.    45 

N.  Y.  638 ..    660=* 

Barrington    «.    Turner,    3    Lev. 

38 637S 

Barron  «.  Davis,  4  N.  H.  338..   405' 
Barrow  v.  Laundry,  15  La.  Ann. 

681 2953 

Barry  v.  Lowell,  8  Allen,  127.293%  350' 

z).  Lowell,  8  Allen,  128 348^ 

V.  New  York  C.  &  H.  R. 

R.  Co.  92  N.  Y.  390  ..     21> 
Bartholomew  v.  Poughkeepsie  «& 
H.    Ferry    Co.    (Sup. 
Ct.)  28  N.    Y.    S.   R. 

388 489* 

Bartle  v.  Des  Moines,  38  Iowa, 

414 806'' 

Bartlett  v.  Baker,  3  Hurl.  &  C. 

153 566« 

V.  Bangor,  67  Me.  460 161  ■' 

V.  Crozier,  17  Johns.  439, 

452-455 3393 


XX 


TABLE    OF    CASKS. 


Bartlett  v.  Crozier,  17  Johns.  439, 

454 .-..    338' 

«.  New  York  &  S.  B.  F.  & 
S.     Transp.     Co.,    25 

Jones.  &S.  348 489' « ' 

Barton  v.  Home  Ins.  Co.  42  Mo. 

156 659> 

V.  Si.  Louis  &  I.  M.  R.  Co. 

52  Mo.  25a 612' 

V.  Syracuse,  36  N.  Y.  54.. 

292^  311^  316,  342' 

•y.  Syracuse,  3G  N.  Y.  58-.    252^ 
«.  Syracuse.  36  N.  Y.  54,  37 

Barb.  292. 

326^  3383,  32925,  33037^  33115 
«.  Syracuse,  37  Barb.  292. 

3263,  3422 

V.  Union  Cattle  Co.  (Neb.) 

7L.  R.  A.  457 8^ 

Bass  V.  Chicago,  B.  &  Q.  R.  Co. 

28  111.  9 646^ 

V.  Fontleroy,  11  Tex.  698.  480^ 
Bassett  v.  Salisbury  Mfg.  Co.  43 

N.  H.573. 280' 

V.  Salisbury  Mfg.   Co.  43 

N.  H.  569 299' 

Bastable  v.  Syracuse,  8  Hun,  587 

292^  311* 

V.  Syracuse,  8  Hun,  587,  72 

N.  Y.  64 

304^  320^  3253,  326*5,   328^ 
V.  Syracuse,  72  N.  Y.  64..   290' 
Batchelder  v.  Hibbard,  58  N.  H. 

269 182' 

V.  Keniston,  51  N.  H.  496.   397^ 
Bateman  v.  Bluck,  18  Q.  B.  870- .   469' 
Bates  V.  Illinois  Cent.  R.  Co.    66 
U.  S.  1  Black,  204,  17 

L.  ed.  158 4002 

V.    Smith,    100    Mass.    181 

..- 296*,  3035,  3493 

V.   Westborough  (Mass.)  7 

L.  R.  A.  156 

340-,  348,  348' 

Bathurst  v.  Macpherson,  L.  R.  4 

App.  Cas.  256 292^ 

Baxter  v.  Winooski  Turnp.    Co. 

22  Vt.  114 79^  80-',  471^ 

Bay  City  Gaslight  Co.  v.  Indus- 
trial Works,  28  Mich. 

182. 5172 

Baylor  v.  Decker,  133  Pa.  168. ..   499^ 
Beach  «.  Elmira,  22  Hun,  158... 

..292*5,  2933, 

3045,   311*,    320^  325',  326* 
V.   Gaylord  (Minn.)  45  N. 

W.  Rep.  1095.. 2975 

Bealey  v.  Shaw,  6  East,  208 426 

Beall  V.  Clore,  6  Bush,  676 427" 

Bean  ». Coleman,  44  N.H. 539.1595,  245' 


Bearce  v.  Fossett,  34  Me.  575 540- 

Beard  v.  Clarke,  35  Minn.  324...   557' 
V.  Murphy,  37  Vt.   99,   86 

Am.  Dec.  693 38',  200-2 

V.  Murphy,  37  Vt.  104.295^  300 
Beardslee     ».     Richardson,      11 

Wend.  25 490* 

Beardsley  v.  Smith,  16  Conn.  368  339' 
Beatty  v.  Central   Iowa  R.  Co.  58 
Iowa,    242,    8   Am.    & 
Eng.  R.  R.  Cas.  210..    133^ 
V.  Gregory,  17  Iowa,  114- -    182' 
Beaulieu*.  Finglam,  Y.  B.  2  Hen. 

IV.  fol.  18,  pi.  6 

2708,  641*,  649=* 

Beavers  v.  Trimmer,  25  N.  J.  L. 

97 --     56' 

Beck  V.  Carter,  6  Hun,  604,  68  N. 

Y.  284.. 118 

V.  Carter,  68  N.  Y.  283,  23 

Am.  Rep.  175 191 

29\  54,  73^  110',  118,  121' 
V.  Carter,  68  N.  Y.  292....     21' 

V.  Dyson,  4  Camp.  199 615- 

Beckley  v.  Learn,  3  Or.  470 480' 

V.  Learn,  3  Or.  544 480' 

V.  Skroh,  19  Mo.  App.  75.   154- 
Beckman  v.  Ereamer,  43  111.  447 

5012,  5131 

Beckwith  v.    Shordike,   4  Burr. 

2092 5915,  615 

Bedell  v.  Berkey,  74  Mich.  435..  24^  ^ 
V.  Long  Island    R.  Co.  44 

N.  Y.  367-370. 256' 

Bedford,  S.   O.   &  B.  R.  Co.  v. 

Rainbolt,  99  Ind.  551.    155* 
Bedlow  «.    New  York  Floating 
Dry-Dock  Co.  44  Hun, 
378  385* 

Beecherw.  Peopl'e'.'sSMich.  289.   577* 
BelcherSugar  Ref  Co.  v.  St  Louis 
Grain  Elev.  Co.  82  Mo. 

121.. .-     97' 

v.    St.   Louis  Grain   Elev. 
Co.  (Mo.)  8  L.    R.  A. 

801.. 39P 

Belfast,  The,    74   U.    S.  7  Wall. 

624,  19  L.  ed.  266  ....    3715 
Belknap  v.  Trimble,  3  Paige,  577, 

3  N.  Y.  Ch.  L.  ed.  281  2622 

Bell  V.  Gough,  23  N.  J.  L.  624  ..    379' 

V.  Leslie,  24  Mo.  App.  661.   586^ 

V.  McClintock,  9  Watts,  119  433^ 

V.  Norfolk  Southern  R.  Co. 

101  N.  C.  21 2983 

V.  Tweutyman,  1  Q.  B.  766   124' 

«.  Warden,  Willes,  202 189^ 

Bellinger  v.  New  York  C.  R.  Co. 

23  N.  Y.  42 110' 

Bellows  V.  Sackett,  15  Barb.  96..       9'^ 


TABLE   OF   CASES. 


XXI 


Bellows  V.  Sackett,  15  Barb.  102.  665' 
Benden  v.  Nashua,  17  N.  H.  477.  305^' 
Benett  v.  Costar,  8  Taunt.  183.-.  498''^ 
Benjamin  v.  Wheeler,  8  Gray,  409, 

413 12> 

V.  Wheeler,  8  Gray,  409,  15 

Gray,  486. 347^  349^ 

Bennett  ®.  Boggs,  Baldw.  60.379»,  495'^ 
V.  Buchan,  76  N.  Y.  386..  634^ 
V.  Contra  Costa  County,  67 

Cal.  77 341^ 

V.  Louisville    &  N.  R.  Co. 
102  U.  S.  577,  26  L.  ed. 

235. A8\  19»,  20^,  150^ 

V.  Whitney,  94  N.  Y.  302.  342'  '^ 

Benson  v.  Morrow,  61  Mo.  345  ..  399'" 

V.  New  York,  10  Barb.  228  486« 

V.  New  lork,  10  Barb.  228  480'' 

V.  Suarez,  29  How.  Pr.  512  664' 

V.  Suarez,  43  Barb.  408  ...     68' 

Benthal  v.  Seifert,  77  Ind.  302...    300'^ 

Bentz  V.  Armstrong,  8  Watts.  & 

S.  40 ....2953,  3021 

Berry  V.  Carle,    8  Me.  269. -37G-^ 

404«,   415,    415',    580'\  531^ 
V.  Snyder,  3  Bush,  266,  277   3932 
Bertram  v.  Curtis,  31  Iowa,  46  . .    209' 
Besozzi  V.  Harris,  1  Fost.  &  F.  92 

...587',  629 

Besso  V.  Southworth,  71  Tex.  765  476'^ 
Beswick  v.   Cunden,   Cro.    Eliz. 

402,520 434 

Bethum  v.  Turner,  1  Me.  Ill  ...  237^ 
Bidelman  v.  State,  110  N.  Y.  282, 

18  Cent.  Rep.  403 482^ 

Bigelow   V.  Hartford  Bridge  Co. 

14  Conn.  565 477^ 

V.  Randolph,  14  Gray,  541 

33S^,  3393,  3441 

V.  Randolph,  14  Gray,  543 

340',  3444 

V.  Reed,  51  Me.  325 611^ 

V.  Shaw,   65  Mich.   341,  8 

West.  Rep.  781 516 

Biggs  V.  Farrell,  12  Ired.  L.  1  ...  482« 
Biggs  &  Clark's  Case,  2  Leon.  104  6393 
Biglow  V.  Battle,  15  Mass.  813...  428' 
Big  Rapids  v.  Comstock,  65  Mich. 

78,  8  West.  Rep.  136...    7P 
Bileu  V.  Paisley.   18  Or.  47,  4  L. 

R.  A.  840.. 590',  592'3,  595' 

Bill  V.  Smith,  89  Conn.  211 612' 

V.  Smith,  39  Conn.  212 611^ 

Billings  V.  Breinig,  45  Mich.  70. .   486 
Billman  v.  Indianapolis,  C.  &  L. 
R.  Co.  76  Ind.  166,  40 

Am.  Rep,  230 

653,  6042,  6563,  6573 

Bills  V.  Kinson,  21  N.  H.  448....  602'' 
Bingham  v.  Salene,  15  Or.  208  ..    181'' 


Binghampton  Bridge,  The,  70  U. 

S.  3  Wall.  71,18  L.ed. 

142... 463'^ 

Binks  V.  South  Yorkshire  R.  &  D. 

R.  Co.  3  Best  &  S.  244  117' 
Bird  V.  Great  Northern  R.  Co.  28 

L.  J.  N.  S.  Exch.  3  .-    146* 
V.  Higginson,  6  Ad.  &  El. 

824.. 500* 

V.  Holbrook.  4  Bing.  628..      17» 
V.  Smith,  8  Watts, ^84 

1 380*.  480'«s 

Birdseye  v.  Frost,  34  Barb.  367..   634* 
Birge  v.  Gardiner,  19  Conn.  507.. 

...597',  669* 

Birkett  v.  Knickerbocker  Ice  Co. 

110  N.  Y.  507. 28* 

Birmingham  Canal  Co.  v.  Lloyd, 

18  Ves.  .Jr.  515. 458* 

Bittle  V.  Stuart,  84  Ark.  224 875« 

Black  V.  O'Hara,  54  Conn.  17  ...    176» 
V.  Philadelphia&R.  R.  Co. 

58  Pa.  249 94* 

Blackman  c.  Simmons,  3  Car.  & 

P.  188.. 6O43,  6I935 

Blackwell  v.  Old  Colony  R.    Co. 

122  Mass.  1 474',  475> 

Blades  ».  Higgs,  12  C.  B.  N.  S. 

50l,  13  C.B.N.  S.  844, 

11  H.  L.  Cas.  621,  20 

C.  B.  N.  S.  214 543' 

V.  Hiffgs,    13  C.  B.   N.  S. 

866 525 

Blaine  v.  Chambers,  1  Serg.  &  R. 

169 419* 

V.  Ray,  61  Vt.  566. 428' 

Blair  v.  Forehand,  100  Mass.  136  628'» 

V.  Forehand,  100  Mass.  141   627« 

Blake®.  Everett,  1  Allen,  248...   234* 

».  Ham,  50  Me.  811 166' 

Blakeley  v.  LaDuc,  19  Minn.  187  488* 
Blakely  Twp.  v.  Devine,  36  Minn. 

58 297* 

Blanchard  v.  Ayer,  148  Mass.  174, 

176 351' 

V.  Baker,  8  Me.  253,  23  Am. 

Dec.  504 2872,  425*,  443* 

V.  Bridges,  4  Ad.  &  El.  176  255» 
Blanchett  v.  Border    City    Mfg. 

Co.    148     Mass.   21,  3 

NewEng.  Rep.  92  ...    136» 
Blenkiron  v.  Great  Central  Gas 

Co.  8  L.  T.  N.  S.  817  642' 

Blessing  v.  Blair,  45  Ind.  546 443* 

Bliss  «.  Greeley,  45  N.  Y.  071... 

281,  285' 

V.  Johnson,  94  N.  Y.  285..    247* 
V.  Schaub,  48  Barb.  839...   250' 
Bloch^.  Isham,  28  Ind.  37 

2095,  210*,  2203 


XXll 


TABLE    OF    CASES. 


Bloch  v.  Isham,  28  Ind.  37, 93  Am. 

Dec.  29.J,  note. 214^ 

Blodgett  V.  Boston,  8  Allen,  237.    125i 
V.  Smith,  7  Hurl.  &  N.  733  584 

Blood  V.  Bangor,  66  Me.  154 329^ 

V.  Nashua  &  L.  R.    Co.  2 
Gray,  137,  61  Am.  Dec. 

444. 3553,  405' 

Bloodgood  V.  Ayers,  37  Hun,  356  454^ 
V.  Ayers,  108  N.  Y.  400,  11 

Cent.  Rep.  108 16,  276 

Bloomington  v.   Brokaw,  77  III. 

194 306^ 

V.  Perdue,  99  111.  329 31 

Blunt®.  Aikin,  15  Wend.  522...   434^ 
Blyth     «.     Birmingham    "Water- 
works  Co.    11   Exch. 

781 .139",  431^ 

1).  BirralnghamWaterworks 

Co.  11   Exch.  781,  784    103'^ 
V.  Birmingham  Waterworks 

Co.  11   Exch.  783 36P 

V.  Topham,  Cro.  Jac.  158. 

2V,  117,  1502 

Board  of  Trade  Teleg.  Co.  v.  Bar- 
nett,   107   111.   507,  47 

Am.  Rep.  453 97' 

Boatwright  v.  Bookman,  Rice,  L. 

447 499«,  5142 

V.  Bookman,  Rice,  L.  447, 

451 531« 

Bodfish  V.  Fox,  23  Me.  95.. ISS'' 

Boecher*.  Lutz,  13  Daly,  28 628" 

Bogenschutz  v.  Smith,  84  Ky.  330   145- 
Bohen  v.  Waseca,  32  Minn.  176. . 

342',  3432 

Boissonnault    v.     Oliva,     Stuart 

(Low.  Can.)  564 405' 

V.  Oliva,  Stuart  (Low.  Can.) 

565 3773 

Bolch  V.  Smith,  7  Hurl.  &  N.  726  584' 

V.  Smith,  7  Hurl.  &  N.  736  150^ 

V.  Smith,  7  Hurl.  &  N.  741    568^ 

Bombaugh  v.  Miller,  83  Pa.  203.   580^ 

Bond  V.  Srnith,  44  Hun,  219 

..73^  110',  121'.  122 

v.  Smith,  113  N.  Y.  378...  122* 
Bonner  v.  Welborn,  7  Ga.  311...  70' 
Boody  V.  Watson,  64  N.  H.  162,  4 

New  Eng.  Rep.  563  ..    171« 
Boorman  v.  Sunnuchs,  42  Wis.  233  399- 
V.  Sunnuchs,  42  Wis.  235..   3998 
Booth  V.  Ratte,  L.  R.  15  App.  Cas. 

188. 559^  563' 

Boothby  v.  Androscosgin  &  K.  R. 

Co.  51   Me.  318  ...38',  1982 
Borden  v.  Vincent,  24  Pick  301 

75^  474'  2 

Borden  Min.  Co.  v.  Barrv,  17  Md. 

419. 1 566^ 


369* 


35^ 

35^ 


Bordentown,  The,  16  Fed.  Rep. 
270 

Bordentown  &  S.  A.  Turnp.  Co. 

V.  Camden  &  A.  R.  & 

Transp.  Co.  17   N.  J. 

L.  314 

Boss  v.  Litton,  5  Car.  &  P.  407... 
Boston  V.  Gray.   144  Mass.  53,  3 

New  Eng.  Rep.  698.41\  62" 
V.  Lecraw,  58  U.  S.  17  How. 

426,  15  L.  ed.  118 

308',   380«,  382'''*5  6 

V.  Lecraw,  58  U.  S.  17  How. 

431,  15  L.  ed.  121 383'  « 

®.   Richardson,  105    Mass. 

351 4933 

V.   Richardson,    105   Mass, 

351,  357 560' 

v.    Richardson,    105   Mass. 

358.... 380« 

Boston  &  A.  R.  Co.  v.  Briggs,  132 

Mass.  24 5913 

Boston  &  R.  Mill  Dam  Corp.  «. 

Newman,  12  Pick.  467  533' 
Boston  &  W.  R.  Corp.  v.  Old  Col- 
ony R.  Corp.  12  Cush. 

6O0... 

Boston  Belting  Co.  «.  Boston,  149 

Mass.  44 

Boston  Water  Co.  v.  Boston,  127 

Mass.  374 

Boston  Water  Power  Co.  v.  Bos- 
ton &  W.  R.  Corp.  16 

Pick.  512,  525 456^ 

Bottsw.  Mo.  Pac.  R.   Co.  11  Mo. 

App.  589 94' 

Boulder    v.    Niles,  9  Colo.   415 

342',  343' 

Bourke^j.  Davis,  L.  R.  44  Ch.  Div. 

110 ....188*5_ 

Bowditch  V.  Boston,  101  U.  S.  16, 

25  L.  ed.  980 

Bo  wen  v.  Team,  6  Rich.  L.  298.. 
V.   Team,  6  Rich.  L.  298, 

305.. 

Bower  i'.  Peate,  L.  R.  1 Q.  B.  Div. 

321.... .38,  154^   233 

Bowling  Green  v.  Carson,  10  Bush, 

64 152^ 

Bowlsby  V.  Speer.  31  N.  J.  L.  351 

147%  295',   296* 

Bowman  v.  New  Orleans,  27  La. 

Ann.  503 2953,    298^ 

V.  Wathen,  2  McLean,  376 

480*,   486« 

■V.  Wickliffe,  15  B.  Mon.  84.  .427" 
Box  V.  Jubb,  L.  R.  4  Exch.  Div. 

76... 373' 

Boyce  v.  California   Stage  Co.  25 

Cal.  460 156* 


859* 
315' 
2552 


257* 

& 

577« 

58P 


TABLE    OF    CASES. 


XXlll 


Boyer,  Ex  parte,  109  U.  S.  629,  27 

L.  ed.  1056 370 

Boyington  v.  Squires,  71  Wis,  276  547^ 
Boyle  V.  Tainlyn,  6  Barn.  &  C. 

337 5912 

Boynton  v.  Longley,  19  Nev.  69 

281-,  295^   429" 

Brace  «.  Yale,  4  Allen,  393 424- 

■».  Yale,  10  Allen.  441.188\   855' 
Brackenridge  v.   Fitchbnrg,    145 
Mass.  160,  5  New  Eug. 

Rep.  171 .:.    127^ 

Bradbee  v.   Christ's    Hospital,  4 

Man.  »feG.  714 233^ 

Bradbury  v.  Benton,  69  Me.  194. 

340-,   348^ 

V.  Gilford,  53  ]\Ie.  99 593^ 

Bradley  ».  Gill,  Lutw.   29 131« 

V.  New  York  &  N.  li.  R. 

Co.  21  Conn.    294 270' 

B.  Rea,  14  Allen ,  20 634- 

Bradley  Fish  Co.  v.   Dudley,  37 

Conn.    136 574'  ^ 

Bradt  v.  Albany,  5  Hun,  591 293' 

Brady  v.  Ball,  14  Ind.  317 

-- 59P,  5923,   5932 

V.  Northwestern    Ins.  Co. 

11  Mich.  425 658 

D.  Weeks,3Barb.  1.57 131'" 

Bragg  V.  Paulk,  42  Me.  502 230' 

Brailey  v.  Southborough,  6  Cash. 

141. 3473 

Brainard  v.  Clapp,  10  Cush.  10.  _ 

---.  241',   265^ 

V.   Conn.  River    R.  Co.  7 

Cusb.  506,  511 75*  474^ 

v.  ^Missisquoi  R.  Co.  48  Vt. 

107 933 

Brakely  v.  Sharp,  9  N.  J.  Eq.  9. 

169«.   185' 

V.  Sharp,  9  N.  .1.  Eq.  9,  10 

N.J.  Eq.  206 241^ 

®.  Sharp,  10  N.  J.  Eq.  206.  175' 
Branch  v.  Doane,  18  Conn.  233..  425^ 
Brand  v.  Troy  &  S.    R.    Co.    8 

Barb.  369 35^ 

Brass  «.  Maitland,   6  El.   &  Bl. 

485 133' 

Braxon  v.  Bressler,  64  111.  488...   412-* 
Bray  tJ.  Wallingford.  20  Conn.  416, 

419- 3393 

Brayton  v.  Fall  River,  113  Mass. 
218,  18  Am.  Rep.  470. 

326S  3275,  4741 

tJ.Fall  River,  113  Mass.  218, 

226 34R2 

V.  Fall  River,  124  Mass.  95     89^ 
Brearlv  «.  Norris,  23  Ark.  514...   487* 
Breeds.  Lynn,  126  Mass.  367.474',  562 
Breen  ®.  Locke,  46  Hun,  291 385- 


Breen  v.  New  York  C.  &  H.  R. 

R.  Co.  109    N.  Y.  297, 

11  Cent.  Rep.  891....  147« 
Brennan  v.  Friendsliip,(j7  Wis.  223  127* 
Brent  u  Kimball,  CO  111.  211 

.626«,  627"> 

Brew  v.  Van   Deman,   6  Heisk. 

433 160* 

Brewer  v.  Marshall,  18  N.  J.  Eq. 

337 221''* 

V.  Marshall,   18  N.  J.  Eq. 

337.  19  N.  J.  Eq.  537.   221« 

Brewster  v.  Hill,  1  N.  H.  350 573* 

Brice  v.  Bauer,  108  N.  Y.  428,  11 

Cent.  Rep.  327.... 605 

615\    6I75.    620*,    625,  630 
Bridgeport  v.  New  York  &  N.  H. 

R.  Co.  36  Conn.  255.  89' 
Briegel  v.  Philadelphia  (Fa.)  26 

W.  N.  C.  253-. 34423 

Briggs  V.  Lewiston  &  A.  H.  R. 

Co.  79  Me.  .863 25P 

V.  New  York   Cent.  &  H. 

R.  R.  Co.  72  N.  Y.  26  652' 
1}.  Oliver,   35  L.  J.  N.   S. 

Exch.  163 612' 

V.  Olson,  4  Hurl.  &  C.  403  147^ 
Brigham  v.  Smith,  4  Gray,  297.. 

159',  167',  1745 

Brighthope  R.  Co.  v.  Rogers,  76 

Va.  443 646" 

Brightman  v.  Fairhaven,  7  Gray, 

271 474' 

t).  Grinnell,  9  Pick.  14....    603* 
Brill  V.  Brill,  108  N.  Y.  511,   11 

Cent.  Rep.  305. 245' 

Brimmer  v.  Boston,  102  Mass.  22  334^ 
Brisbine  v.  St.  Paul  &  S.  C.  R. 

Co.  23  Minn.  113  ....  560' 
Bristol  V.  Ousatonic    Water  Co. 

42  Conn.  403 499^  532' 

British   Cast  Plate   Mfrs.    Co.  v. 

Meredith,  4  T.  R.  794.  6' 
Broadbent    i\    Ramsbotham,    11 

Exch.  602. 2962 

V.   Ramsbotham,   34  Eng. 

L.  &Eq.  553 2802 

V.    Ramsbotham,   34  Eng. 

L.  &Eq.  555.. SOO* 

Brock  t).  Copeland,  1  Esp.  203. . .      • 

172,  616',  630^ 

Brondage  v.  Warner,  2  Hill,  145 

217,  5752 

Brookhaven  p.  Strong,  60  N.  Y. 

56 379' 

Brooklyn  v.   Brooklyn   C.  R.  Co. 

47  N.  Y.  475 114',  252* 

Brooks  tJ.  Boston,  19  Pick.  174..     35^ 
®.  Curtis,  50N.  Y.  639.... 

209^  212,  214',  2333* 


XXIV 


TABLE    OF    CASES. 


Brooks  v.  Reynolds,  106  Mass.  31 

1768, 

253 

V.  Taylor,  65  Mich.  208,  8 

West.  Rep.   188 

617\   619>,  620«,  621' «, 

630=* 

Brookville  &  M.  Hydraulic  Co.  v. 

Butler,  91  Ind.  187... 

265 

Broome  v.  New   York  &  N.  J. 

Teleph.  Co.  42  N.    J. 

Eq.  141,  5  Cent.  Rep. 

874     

97' 

Brophy  v.  Hvatt,  10  Colo.  223.. . 

6or 

Broughton  v.  Singleton,  2  Not.t. 

&  McC.  338 

543' 

Brown  v.  Berry,  6  Coldw.  98 

166', 

171' 

V.  Bigelow,  10  Allen,  242-. 

6355 

V.  Black,  43  Me.  443.. 4046, 

413=' 

V.  Bowen,  30N.Y.519.5454, 

548' 

V.  Cape  Girardeau,  90  Mo. 

377,  7  West.  Rep.  154 

337'^ 

V.  Carpenter,  26  Vt.  638... 

.-619',  620«,  625^ 

627« 

V.  Cayuga    &  S.  R.  Co.  12 

N.  Y.  486 

60 

V.  Chadbourne,  31  Me.  9,  50 

Am.  Dec.  641 

376\  377^  402', 

403'  \  404«,  412'  ^  ^,  415, 

5503 

v.  Chadbourne,  31  Me.    9, 

23,25.... 

376« 

V.  Collins.  53  N.  H.  442... 

269' 

V.  DeGroflf,  50N.  J.L.  409, 

12  Cent.  Rep.  818.-.. 

40,4695', 

470' 

V.  Giles,  1  Car.  &  P.  118.. 

5915 

.  615 

V.  Hannibal  &  St.  J.  R.  Co. 

33  Mo.  309 

147' 

V.  lUius,  27  Conn.  84 

275,  287^ 

,  289 

V.  Kennedy,  5  Har.  &  J.  195 

5012 

V.  McAllister,  39  Cal.  573-. 

1083 

V.  Perkins,  12  Gray,  100-40 

470' 

V.  Preston,  38  Conn.  219.. 

3748 

V.  Robins,  4  Hurl.  &  N.  186 

...38',  194 

198 

V.  Stone,  10  Gray,  61.. 2433 

265' 

«.  Susquehanna  Boom  Co. 

109   Pa.    57,    1    Cent. 

Rep.  56 

5572 

V.  Vinalhaven,  65  Me.  402 

3355, 

3522 

V.  Volkening,  64  N.  Y.  76 

242' 

V.  Watson,  47  Me.  161 

7923 

V.  Windsor,  1  Cromp.  &  J. 

20... 192 

1992 

Browne  v.  Scotield,  8  Barb.  239. 

403', 

405' 

Brubaker  v.  Paul,  7  Dana,  428... 

4033 

Bruker   ».    Covington.    69    Ind. 

33 126* 

Brunning??.  Springfield,  17111.  143  342* 
Brusso  V.  Buffalo,  90  N.  Y.  679..  100* 
Bryan  v.  Idaho   Quariz  Min.  Co. 

73   Cal.  249 449"^ 

Bryant  v.  Glidden,  36  Me.  36 406' 

Buccleuch  v.  IVletropolitan  Board 

of  Works,  L.  R.  5  H. 

L.  418 359^6 

Buck  V.  Biddleford,  82  Me.  433..  115' 
Buckbee  v.  Brown,  21  Wend.  110  566* 
Buckby  «.  Coles,  5  Taunt.  311. .  174^ 
Bucki  V.  Cone,  25  Fla.  1 372^, 

374',    376',    4033,    558^  559» 
Buckley  v.    Gutta  Percha  &  R. 

Mfg.  Co.  113  N.  Y.  540  136* 
V.  Leonard,  4  Denio,  500.. 

.-605«,  606,617',  620'  * 

Budd  V.  Sipp,  13  N.  J.  L.  348 .531',  549* 
Buddington  v.  Bradley,  10  Conn. 

213 :.-.. 287* 

V.  Shearer,  20  Pick.  477,  22 

Pick.  427... 594» 

Buffett  V.  Troy  &  B.  R.  Co.   40 

JN.  Y.  168 491* 

Buffum  «.  Harris,  5  R.  I.  243.295',  296* 
Buford  V.  Houtz,  133  U.  S.  320, 

33L.  ed.  618 592 

Bulger  «.  Eden,  82  Me.  352,  9  L. 

R.  A.  205 

318',  336  2  3_  3413,  344s 

Bullen  ®.Runnels,2  N.H.  255.236^,  262* 
Bullock  V.  Wilson,  2  Port.  (Ala.) 

436 380^ 

Bulman  v.  Furness  R.  Co.   32  L. 

T.  N.  S.  430... 24* 

Burbank  v.  Crooker,  7  Gray,  159  201=* 
v.  Pillsbury,  48  N.  H.  475.    229' 
Burcbell  v.  Hickisson,  50  L.  J.  N. 

S.  Q.  B.  101 23' 

Burden  v.  Stein,  27  Ala.  104 

441^  45P,  477' 

Burdick  v.  Cheadle,  26  Ohio  St. 

393  26* 

Burditto.  Swenson,'i7'Tex."562.  70' 
Burgess  ?j.  Gray,  1  C.  B.  578....  250' 
Burgwyn  ®.  Whitfield,  81   N.  C. 

261 592'* 

Burk  V.  Simonson,  104  Ind.  173, 

1  West.  Rep.  190 

...4093,  545',  547* 

Burke  v.  Louisville  &  N.  R.  Co. 

7   Heisk.  451 648^  667' 

V.  Louisville  &   N.  R.  Co. 

7  Heisk.  452. 664' 

V.   Missouri   P.  R.  Co.    29 

Mo.  App.  370 300* 

X.  Smith.  69  Mich.  380,   15 

West.  Rep.  371 IV 


TABLE   OF   CASES. 


XXV 


Burke  v.  Witherbee,  98  N.  Y.  563  138' 
Burliug?).  Reed,  11  Q.  B.  904.-.  64b' 
Burlington  v.   Gilbert,  31  Iowa, 

356. 4852 

Burlington     &     C.     R.     Co.    ©. 
Schweikart,    10    Colo. 

178... 23J3,  238* 

Burlington  &   H.    Ferry   Co.    v. 

Davis.  48  Iowa,  133..   482' 
Burlington   &  M.   R.   R.  Co.  v. 
Westover,  4  Neb.  268. 

--.648*,  654'^  666' 

Burlington,  C.  R.  &  M.  R.  Co.  v. 

Stewart,  39  Iowa,  267  485'' 
Burlock  t).  Peck,  2  Duer,  98....  223 
Burnham  v.  Kempton,  44  N.  H. 

78. 428^ 

V.  Kempton,  44  N.  H.  78,  91   428'' 
V.  Kempton,  44  N.  H.  88..    427'' 
«.  Kempton,  44  N.  H.  90..    262^ 
V.  Nevins,  144   Mass.  88,  3 
New  Eng.  Rep.  792.. 

253,   2652  3 

V.  Nevins,  144  Mass.  88,  94   176* 
V.  Sherwood,  66  Conn.  299, 

6  New  Ene.  Rep.  627.   6346 
V.  Strolher,  66  Mich.  519. .    622» 
Burrill  «.  Augusta,  78  Me.  118,  1 
New  Eng.  Rep,  697.. 

-334^  ^  336',  34P 

Burroughs  v.  Satterlee,  67  Iowa, 

396... 12'^ 

V.  Wliitwam,  59  Mich.  279 

372',  405',  4996,  517 

Burrow  «.  Terra  Haute  &  L.  R. 
C...    107    Ind.   432,    5 

West.  Rep.  626 182« 

Burrows  v.  Burrows,  82  Cal.  564  449' 
V.  Coke   Co.  L.  R.  7  Exch. 

96,  97. 367' 

V.  Gallup,  32  Conn.  501.. 

3748,  55oa 

Burton??.  McClellan,  3  111.  434..    644^ 
V.  West    Jersey  Ferry  Co. 
114  U.  S.  474,  29  L. 

ed.215... 4882,  489^ 

BurwelU.  Hobson,  12Gratt.  322  46P  * 

Buryi).  Pope,  Cro.  Eliz.  118 177 

Busby  ?7.  Holthaus,  46  Mo.  161..     38' 
Bush  V.  Brainard,  1  Cow.  79,  note  589^ 
V.  Johnston,  23  Pa.  209...    108^ 
V.  Portland  (Or.)    23  Pac. 

Rep.  667 306« 

v.  Steinman,  1   Bos.  &  P. 

404 543 

V.  Trowbridee  Waterworks 

Co.  L.  R.  10  Ch.  459.  453' 
Bussr.  Dyer,  125  Mass.  287-16S^  172* 
Bussell  V.  Steuben,  57  111.  35....  3:3&3 
Buster  v.  New  kirk,  20  Johns.  75   543' 


Butchers  Union  S.  H.  &  L.  S.  L. 

Co.  V.  Crescent  City  L. 

S.  L.  &  S.  H.  Co.    Ill 

U.  S.  755,  28  L.  ed.  590  664^ 

Butler  V.  Peck,  16  Ohio  St.  334.. 

2953  299* 
V.  Peck,  16  Ohi'o"st.'335..'  148» 
V.  Thomasville,  74  Ga.  570  320* 
V.  Wildman,  3  Barn.  &  Aid. 

398 659' 

Butt®.  Napier,  14  Bush,  39.. 182',  184^ 
Butte  Canal  &  D.  Co.  v.  Vaughn, 

11  Cal.  143.. 445^ 

Butterfield   v.    Boston,  148  Mass. 

544 149* 

V.  Forrester,  11  East,  60..    365' 
V.  Gilchrist,  63  Mich.  155, 

5  West.  Rep.  744 557* 

Butterfoss  v.  State,  40  N.  J.  Eq. 

325 288' 

Butterworth  v.  Crawford,  46  N. 

Y.  349 168-' 

Buttrick  v.  Lowell,  1  Allen,  172..   335'' 

Butzr.  Ihrie,  1  Rawle,  21 8 580' 

V.  Ihrie,  1  Rawle,  218,  222.  581* 
Buxendin  v.  Sharp,  2  Snlk.  6G2..  605* 
Bybee  v.  State,  94  Ind.  443... 264,  264* 
Byerly  v.  Ananiosa,  79  Iowa,  204.  128' 
Byrne  v.  Boadle.2  Hurl.  &  C.  721  156*- 
V.  Boadle,  2  Hurl.  &  C.  722 

146',    1472 

V.  Crafts,  73  Cal.  641 450' 

V.  Morehouse,  22  111.  603..    184'^ 
V.  New  York  C.  &  H.  R.  R. 
Co.  104    N.  Y.  362,  6 

Cent.  Rep.  393 24« 

Byrnes  v.    Cohoes,  5   Hun,  602, 

affd.  67  N.  Y.  204,  207  293* 
V.  Cohoes,  67  N.  Y,  204... 

2902  3, 

292*  '-,  304^   311*,  312, 
320^  321',  3253,  326=,  327^  " 


C. 

Cadye.  Conger,  19  N.  Y.  256...   236* 

Cagle  V.  Parker,  97  N.  C.  271 176'* 

Cahill  V.  Eastman,  18  Minn.  324. 

210\  271',  436,   439 

Cairo  &  V.  R.  Co.  v.  Stevens.  73 
Ind.  278,  38  Am.  Rep. 

139 148^   300'^   325* 

V.  Stevens,  73  Ind.  279....    295' 
Calder  «.  Sraalley,  66  Iowa,  219.. 

.73'^  108%  109',  113',   114 
Caldwell  v.  New  Jersev  S.  B.  Co. 

47  N.  Y.  282.... 363' 

V.  Sanderson,  69  Wis.  52.. 

5443,   548* 


XXVI 


TABLE    OF    CASES. 


Calkins  v.  Barger,  44  Barb.  424.. 

135^    645^ 

■Callanan  v.  Gilman,  107  N.  Y.  360, 

9  Cent.  Kep.  900 

T.T,  101^  ^^   2483 

Camden  v.  Mulford,  26  JSI.  J.  L. 

56 311* 

Camden  &  A.  Land  Co.  v.  Lippin- 

cott,  45  N.  J.  L  405..   401= 

Camp  v.  Wood,  76  N.  Y.  92 58^ 

€ampbell  «.  Boyd,  88  N.  C.  129.      W 
V.  Lunsford,  83  Ala.  512. . 

23',    106' 

v.  Mesier,  4  Johns.  Ch.  334, 
1  N.  Y.  Ch.  L.  ed.  858 

204',  213,  216^   225 

v.  Pennsylvania  S.  V.    R. 
Co.  (Pa.)  11  Cent.  Rep. 

660. 763 

V.  Portland  Sugar  Co.,  62 

Me.  552 567',   568^ 

v.  Race,  7  Cush.  408 124-* 

V.  Seaman,  63  N.  Y.  568..   409> 
1).  Stillwater,  32  Minn.  308  107« 

V.  Wilson,  3  East,  2tt4 178' 

Canal   Appraisers  e.    People,   17 

Weud.  571,597 389= 

•Canal  Comrs.  v.  People,  5  Wend. 

423 3773,   452= 

®.  People,  5  Wend.  423, 448 

463',   4792 

V.  People,  5  Wend.  423-451   512' 
«.  People,  5  Wend.  452 —   435^ 
Canal  Fund  Comrs.  v.  Kempshall, 

26  Wend.  404 389= 

€anham  v.  Fisk,  2  Cromp.  &  J. 

126,  and  note . . . .5TS' ,  574= 
€annon«.  Boyd,  73  Pa.  179. .166',  171« 
Canny  v.  Andrews,  123  Mass.  155  580^ 
Canterbury®.  Attv-Gen.  1  Phipps, 

'Ch.  30*6,  315,  320 64P 

■Canton  v.  Nist,  9  Ohio  St.  439...  603' 
Cant  well  v.  Appleton,  71  Wis.  463  127= 
Cape  Girardeau  v.   Campbell,  26 

Mo.  App.  12 391'  2 

■Cape  Girardeau  &  B.  M.   &  G. 
Road  Co.  V.  Renfroe, 

58  Mo.  265 90' 

€arbrey  v.  Willis,    7  Allen,  364 

168%   17P 

«.  Willis,  7  Allen,  370__...    1686 
Oardwell      v.     American     River 
Bridsre  Co.  113  U.  S. 
205,  28  L.ed.  959-464',   466^ 
Carey  «.  Brooks, 1  Hill,L.  365.472,    656= 
Carhart  v.  Auburn  Gas  Light  Co. 

22  Barb.  297 288',    289 

Carleton  v.  Franconia  Iron  &  Steel 

Co.  99   Mich.  216 

18-,  193,  20=,  566-3 


Carleton  «.  Redington,  21  N.  H. 

291 56,  428» 

V.  Rugg.   149  Mass.  550,  5 

L.  R.  A.  193.. 477=' 

Carleton  Mills   Co.  v.  Silver,  82 

Me.  215,  8  L.  R.  A.  446  422= » 
Carlin  v.  DriscoU,  50  N.  J.  L.  28, 

10  Cent,  Rep,  176 

36',  72=,    247= 

V.  Paul,  11  Mo.  32. 577« 

Carlisle  «.   Cooper,  19  N.  J.   Eq. 

256 4283 

V.  Cooper,  19  N.  J.  Eq.  260  263= 
V.    Stevenson,    3   Md.    Ch. 

506,   507 4275 

Carlton  v.  Blake  (Mass.)  25  N.  E. 

Rep.  83 2091 

Carlyon  v.  Lovering,  1  Hurl.  &  N. 

784 2883 

Caroon  i\  Doxey,  3  Jones,  L.  23.   235* 
Carpenter  v.  Central  Park,  N.  & 
E.  R.  Co.   11  Abb.  N. 

S.  416 252* 

«.  Latta,  29  Kan.   591 6303 

V.  Lippitt,  77  Mo.  242 628' 

V.  Mann,  17  Wis.  155.126*,   475= 
Carpue  v.  London  &  B.  R.   Co.  5 

Q.  B.  747 155* 

Can  V.  Foster,  3  Q.  B.  581 262* 

V.    Northern  Liberties,    3" 

Pa.  324... .--_330*«'' 

Carrington  v.  St.  Louis,  89  Mo. 

208,  4  West.  Rep.  679.    342' 
V.  Taylor,  11  East,  571.504,    527 
Carroll  v.    Minnesota  Vallev    R. 

Co.  14  Minn.  57" 5" 

1).  Staten  Island  R.  Co.  58 

N.  Y.  126.... 363' 

V.  Weiler,  1  Hun.  605 594'« 

V.  Weiler,  4  Thomp.  &  C. 

131 627« 

Carron  v.  Baltimore,  33  U.  S.  7 

Pet.  243,  8  L.  ed.  672.   359'' 
Carson  v.  Blazer,  2  Binn.  475,  4 

Am.  Dec.  483 

380%  386',  416,  514' 

«.  Central  R.Co.35Cal.325.    248= 

V.  Godley,  26  Pa.  Ill 44',  51 

V.  Western  R.  Co.  8  Gray, 

423,   424 12= 

Carstairs  v.  Taylor,  L.  R.  6  Exch. 

217 136«,  2566,  273= 

Carter  v.  Chambers,  79  Ala.  223.    127* 

V.  Dow,    16  Wis.  298 626= 

v.  Murcot,   4  Burr.  2162.. 

4996,  530' 

V.  Thurston,  58  N.  H.  104, 

106 403» 

V.  Thurston,  58  N.  H.  104, 

107 405' 


TABLE    OF    CASES. 


XXVll 


-Carter  v.  Thurston,  58  N.  H.  108.  3773 
•Carlerville  v  Cook,  129  111.  152,4 

L.  R.  A.  721- 6603 

C'artwright  v.  Mapleson,  53  N.  Y. 

622... 571' 

Caruthers  v.  Pemberton,  1  Mont. 

Ill 445« 

Cary  v.  Daniels,  5  Met.  236.. 356',  443« 
V.  Daniels,  5  Met.   237,  8 

Met.  476... 455- 

V.  Daniels,  8  Met.  466,  41 

Am.  Dec.  532 425\  545^ 

v.  Daniels,  8  Met.  477,  41 

Am.  Dec.  532.... 411',  441 
Oase  V.  Chicago,  R  I.  &  P.   R. 

Co.  64   Iowa,  762.133-,  146^ 

V.  Hall,  21  111.  632 6028 

V.  Loftus,  39  Fed.  Rep.  730, 

5L.  R.  A.684.. 

359^  380^  5603 

■Case  of  the  Monopolies,  11  Coke, 

87-.. -. - 527' 

Caspary  v.  Portland  (Or.)  24  Pac. 

Rep.  1036 334^  347^ 

•Cassidy  v.   Old   Colony  R.    Co. 

141  Mass.   174,   179,  1 

ISew  Eng.  Rep.  606..  348^ 
Casswell  «.  Worth,  25  L.  J.  N.  S. 

Q  B.  121 584' 

Castello  V.    Laudwehr,    2S   Wis. 

522. 479-,  5303,  5316 

•Castle  V.  Parker,  18  L.  T.  N.  S. 

367 106' 

Caswell  V.  Chicago  &  N.  W.  R. 

Co.   42  Wis.  193 667' 

V.  Johnson,  58  Me.  164 498- 

■Cates  V.  Wadlington,  1  McCord, 

L.  580. 377' 2,  514- 

Catron  v.  Nichols,  81  Mo.  80 644- 

Cauley  v.  Pittsburgh,  C.  &  St.  L. 

R.   Co.  95  Pa.  398,  40 

Am.  Rep.  664 233,  26- 

Cave  V.  Crafts,  53  Cal.  135 168^ 

V.  Crafts,  53  Cal.  138 166' 

Centerville    v.    Woods,    57    Ind. 

192... 264^ 

Central  City  Horse  R.  Co.  v.  Ft. 

Clark    Horse    R.    Co. 

81111.523 89' 

Central  R.  Co.  v.  Crosby,  74  Ga. 

737 5'^ 

«.  Pennsylvania  R.    Co.  31 

N.  J.  Eq.  475. 90^ 

7).Valentine,29N.  J.  L.  561  2413 
■Central  R.  »&  Bkg.  Co.  v.  Smith, 

76   Ala.   572,   25   Am. 

Rep.  353 491- 

Central  Trust  Co.  v.  Wabash,  St. 

L.    &    P.    R.    Co.     33 

Fed.  Rep.  566 559- 


Central  Wharf  Co.?;.  India  Wharf, 

123  Ma-s.  .067 575' 

Centraliaw.  Krouse,  64  111.  19...  129^ 
Cesar  0.  Karutz,  00  N.  Y.  229...  15' 
Chadwick  v.  Trower,  6  Biug.  N. 

C.  1 194,  199- 

Chaffee  v.   Telephone  &  Teleg. 

Constr.  Co.     77  i\Iich. 

625,  6  L.  R.  A.  455...  6683 
Chalk  V.    McAlily,    11   Rich.  L. 

153. 427'» 

Chamberlain  v.  Ward,  62  U.  S.  21 

How.    548,   16  L.   ed. 

211 -- 369' 

Champlaiu   &   St.    L.  R.   Co.  v. 

Valentine,  19  Barb.  485  512' 
Champlin  v.  Mortran,  20  111.  I.s2.  580^ 
Chandler  v.  Howland,  7  Gray.  348  40U' 
V.  Jamaica  Pond  Aqiieduct 

Corp.  125  Mass.  544..  5803 'J 
V.  Thompson,  3  Camp.  80.  255^ 
Chapels.  Smith,  80  Mich.  100... 

425=,  426-,  531' 

Chapin  v.  Brown,  15  R.  I.  579,  4 

New  Eng.  Rep.  918. .  243« 
Chapman  v.  Gray,  15  Mass.  445..  573^ 
1).  Hoskins,  2  Md.  Ch.  485 

393-,  397'' 

V.  Rochester,  HON.  Y.  273, 

I  L.  R.    A.    296,  and 
note,  13  Cent.  Rep.  426 

8-,  14',  154-,  290 

V.  Rothwell,  El.  Bl.  &  El. 

168 193,  150^* 

Charles  River  Bridge  v.  Warren 
Bridge,   36    U.    S.    11 
Pet.  506,  9  L.  ed.  808.   484= 
».  Warren  Bridge,  36  U.  S. 

II  Pet.  536,  9  L.  ed. 
819. 481« 

Charless  v.  Rankin,  22  Mo.  566.. 

....38',  198',  199-,  200-* 
«.  Rankin,  22  Mo.  566,  66 

Am.  Dec.  644,  and  note, 

649.... 200- 

Charlestown?).  Middlesex  County, 

3  Met.  202 3743,  4051 

Charlotte     ®.      Pembroke     Iron 

Works(Me.)8L.  R.  A. 

828 70«.  71' 

Charlwood  v.  Greig,  3  Car.  &  K. 

46 586^  620' 

Chase    v.    Merrimack    Bank,    19 

Pick.  564,  569 339' 

«.  Silverstone,  62  Me.  175. 

280',  4543 

Chasemore  v.  Richards,  2  Hurl. 

&  N.  168,  7  H.  L.  Cas. 

349. 287* 

®.Richards.2Hurl.  «S;N.190  443« 


XXVlll 


TABLE   OF   CASES. 


Chasemorew.  Richards,  5  Hurl.  & 

N.990,  7H.  L.  Cas.349   283' 
v.  Richards,  7  H.  L.  Cas. 

349 ..257-^280' 2,  4543 

Chatfield  v.  Wilson,  28  Vt.  49.12',  296^ 
Chauntler  v.  Robinson,  4  Exch. 

163 1543,  2336 

Chenango  Bridge  Co.  v.  Lewis,  63 

Barb.  111. 484'' 

■D.  Paige,  83  N.  Y.  178-... 

389-,  463'  ^  479'  \  5303,  531^ 
Cheney  v.  O'Brien,  69  Cal.  199.. 

..176S,  235^ 

Chesbrough  v.   Comrs.  37    Ohio 

St.  516.--. 70> 

Cheshire  R.  Co.  v.  Foster,  51  N. 

H.  490 269' 

Chesley  v.   De  Graff,    35  Minn. 

415 557' 

«.  King,  74  Me.  164- - 

ir,  12^   283',  285 

Chestnut   Hill  &   S.   H.  Turnp. 
Co.   «.   Piper,    77  Pa. 

432--- -. ISP 

Chew  V.  Cook,  39  N.  J.  Eq.  396, 

note - 5762 

Chicago  V.  Gallagher,  44  111.  295. 

...316',  332' 

V.  Hesing,  83  111.  204 29'' 

V.  Keefe,  114  111.  223 104=* 

V.  Lafiin.  49  111.  172.. 389- 

®.  Landass,  66  111.  361 316' 

V.  McGiven,  78  111.  347 342' 

V.  Major,  18  111.  349 29'^ 

r.  O'Brennan.  65  111.  160.        68' 
«.  Robbins,    67    U.    S.     2 
Black,  418,   17  L.   ed. 
298. 39^  100^  114',  342',  343'' 
V.  Union     Bldg.  Asso.  102 

111.  379 76' 

V.  Wright,  69  111.  318 184' 

Chicago  «fe  A."R.  Co.  «.  Adier,  129 

111.  335 382^ 

«.  Glenney,  118  111.  487,  6 

West.  Rep.  544  _ 298^ 

V.  Pennell,  94  111.  448 6663 

V.  Pennell,  110  111.  435....    654' 

V.  Utley,  38  111.  410 595* 

Chicago  &  A.  Oil  &  Min.  Co.  v. 
U.  S.  Petroleum     Co. 

57  Pa.  83. 80« 

Chicago  &  E.  I.  R.  Co.  v.  Loeb, 
118  111.    203,    5  West. 

Rep.  893 735 

Chicago  &  M.  R.  Co.  v.  Patchin, 

16  111.  198 147' 

Chicago  &  N.W.  R.  Co.  v.  Simon- 
son,  54  111.  5U4...6654,  669* 
Chicago,  B.  &  Q.  R.  Co.  v.  Iowa, 

94U.S.155,24L.ed.  94     97' 


Chicago,  B.  &  Q.  R.  Co.  v.  Por- 
ter, 72  Iowa,  426 386«' 

V.  Schaffer,  124  111.  112,  14 

West.  Rep.  139 2568,  476^ 

V.  Stumps,  55  111.  367 134' 

Chicago,  D.  &  V.  R.  Co.  v.  Chi- 
cago, 121  III.  176,  9 
West.  Rep.  493 88»'» 

Chicago,  K.  &  W.  R.  Co.  ».  Mor- 
row, 42  Kan.  339 358' 

Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 

Trotter,  61  Mi.ss.  417.    133' 

Chicago  Gasligiit  «&  Coke  Co.  ». 
Peoi)ie's  Gaslight  & 
Coke  Co.  121  111.  530, 
11  West.  Rep.  69 89* 

Chick    V.     Newberry    &    Union 

Counties,  27  S.  C.  419  482'' 

Chidsey  v.  Canton,  17  Conn.  475, 

478 3393 

Child  «.  Boston.  4  Allen,  41 

.329'^  ^  33P «,  3343,  337,  340- 
V.  Boston,  4  Allen,  41,  51. 

340',  344* 

V.  Boston,  4  Allen,  41,  52. 

3433,  349* 

V.  Boston,  4  Allen,  43 318 

V.  Boston,  4  Allen.  53 347* 

«.  Chappell,  9  N.  Y.  246, 

257.... 184^ 

■0.  Greenhill,  Cro.  Car.  553   498« 

Childs  V.  Nelson,  09  Wis.  125...     72' 

China  v.  Southwick,  12  Me.  238. 

431,  546^ 

Choate  v.  Burnham,  7  Pick.  274.   163* 

Chope  V.  Eureka,  78  Cal.  588,  4 

L.  R  A.  325 34P 

Christian  v.  Van  Tassel,  13  Fed. 

Rep.  884 369* 

Christie  v.  Griggs,  2  Camp.  79...    156' 

Church  V.  Meeker,  34  Conn.  429.   480»- 

Church  of  the  Ascension  v.  Buck- 
hart,  3  Hill,  193. -.1045,  148 

Churchill  v.  Grundy,  5  Dana,  99.   487''^ 
V.  Lauer,  84  Cal.  233 459' 

Churchward  «.  Studdy,  14  East, 

249.. 5263,  528,  543' 

Chunot  «.  Larson,  43  Wis.  536..     615- 

Cihak  V.   Klekr,  117  111.    643,  5 

West.   Rep.  490 

163^  165^  166* 

Cincinnati  v.  Stone,  5  Ohio   St. 

38 114* 

v.  White,  31  U.  S.  6  Pet. 

431,  8  L.  ed.  452 564' 

V.  White,  31   U.  S.  6  Pet. 

436.  8  L.  ed.  455 1883 

Cincinnati  &  S.  G.  Ave.  R.  Co.  y. 
Cumminsville,  14  Ohio 
St.  523 82',  93* 


TABLE    OF    CASES. 


XXIX 


Cincinnati,  I.,  St.  L.  &  C.  R.  Co. 
V.    Cooper,    120    lud. 

469-473.. 656^ 

Oincinnati,  P.  B.  &  8.  P.  Packet 
Co.  V.  Catlettsburg,  105 
U.    S.    559,   26  L.  ed. 

1109 372' 

Cincinnati  St.  R.  Co.  v.  Cum- 
minsville,  14  Ohio  St. 

523.- 248= 

Citizens  St.  R.   Co.  v.  Jones,  84 

Fed.  Rep.  579.. SS^ 

€ity  of  Baltiinoie.The,  5  Ben.  474  540' 
City  of  Erie,  Tlje,  v.  Canfield,  27 

Mich.  479.. 405' 

€ity  of  Hartford,  The,  97  U.  S. 

323,  24  L.  ed.  930....    369' 
€ity  of  Salem.  The,  37  Fed.  Rep. 

846,  2L.  R.  A.  380...   376« 
Civilta,  The,  193  U.  S.  699,  26  L. 

ed.  599 369' 

€lancy  v.  Byrne,  56  N.  Y.  129.. 

50',  58,  61',  67 

V.  Byrne,  56  N.  Y.  133 113 

Clapp  V.  Boston,  133  Mass.  367..    202' 
V.  Herrick,   129  Mass.  292.    548' 
Olaremont  v.    Carlton,    2  N.  H. 

369,  371 50P 

€larita,  The,  90  U.  S.  23  Wall.  1, 

23  L.  ed.  146.. 136* 

Clark  V.  Adams,  18  Vt.  425 599' 

V.  Barrington.  41  N.  H.  44  127* 
V.  Campau,  19  Mich,  325.  397^ 
«.  Campau,  19Mich.  328..  517- 
v.  Chambers,    L.    R.   3  Q. 

B.  Div.  327 

....16',  367',  584,  611=.  612^ 
V.  Cogge,  Cro.  Jac.  170...   174" 

V.  Conroe,  38  Vt.  469 280' 

V.  Farmers  Shoe  &  C.  Co. 

16  Mo.  App.  463 52 

V.  Foot,  8  Johns.  421.. 641*,  644- 
V.  Foot,  8  Johns.  422..  135*,  644 
V.  Fry,  8  Ohio  St.  358.:..  1242 
V.  Gaflfeuey,  116  111.  362,  3 

West.  Rep.  581 18P 

v.  Keliher,  107  Mass.  406..   628' 

V.  Lewis,  35  111.  417 601'  ^ 

V.  Look  port,  49  Barb.  580.  342- 
V.  Manchester,  62  N.  H.  577  23« 
V.  Peckham,  9  R.  I.  455.. 

2922,  3307 

«.  Peckham,  9  R.  I.  458..  327^ 
V.  Peckham,  10  R.  I.  35...  79' 
V.  Pecki)am,9  R.I.  455,  10 

R.  L  35,  38 3592 

«.  Rochester,  43  Hun,  271 

3045,  326* 

t).  Saybrook,  21  Conn.  813, 

327 774 


Clark  V.  Union  Ferry  Co.  35  N. 

Y.  485 488^  490* 

V.    Wilmington,    5     Harr. 

(Del.)243_.. 305» 

Clarke  v.  Crimmins  (Sup.  Ct.)  32 

N.  Y.  S.  R.  978 21 

«.  Providence,  16  R.  I. , 

1  L.  R.  A.  725. ...531',  541« 
V.  Rhode  Island  E.  L.  Co. 
16   R.  1.  — ,   17  Atl. 

Rep.  50... 2P 

Claude  v.  Weir  (Q.  B.)  4  Montreal 

L.  Rep.  197 294' 

Clawson  v.  Primrose,  4  Del.  Ch. 

643 179* 

Clayburgh  v.  Chicago,  25  111.  533   342' 
Cleary  v.   Oceanic    Steam   Nav. 

Co.  40  Fed.  Rep.    908  567* 
Cleland  v.  Thornton,  43  Cal.  437 

6442.  6472 

Clemence  v.    Auburn,  66  N.  Y. 

334,339.. 316' 

Clement  v.  Gould,  61  Vt.  573.423«,  458« 
Cleveland   v.   Grand    Trunk    R. 
Co.    42  Vt.  449 ...654' 
D.  New   Jersey   Steamboat 
Co.    68  N.  Y.  306.... 
V.  New   Jersey   Steamboat 
Co.  68  N.    Y.  308...- 
Cleveland,  C.  &  C.  R.  Co.  v.  El- 
liott, 4  Ohio  St.  474. . 
Cleveland,  C,  C.  &  I.  R.  Co.  v. 
Newell,  104  Ind.  264, 

1  West.  Rep.  890 

V.  Walrath,  38  0hioSt.  461 
Cleves  V.  Willoughby,  7  Hill,  83 
Clifford  V.   Dam,  12'  Jones  &  S. 
891,  81  N.  Y.  52 

V.  Dam,  81  N.  Y.  52 

54,  108S  110,  113 

V.  Dam,  81  N.  Y.  56 

52^  2473,  338* 

V.  Denver,  S.  &  P.  R.  Co. 

9  Colo.  333 143' 

Clifton  Iron  Co.  v.  Dye,  87  Ala. 

468..- 293", 

Cline  V.  Crescent  City  R.  Co.  (La.) 

6  So.  Rep.  851 

Clinton  v.  Bacon,  56  Conn.  508.. 
V.  Buell,  55   Conn.    263,  5 

NewEng.Rep.233.540«,  54l« 
V.  Howard,  42  Conn.  294.. 
V.  Myers,  46  N.   Y.  511,  7 

Am.  Rep.  373.  379 

Clore  V.  Mclntire,  120  Ind.  262- 

265 

Clowes  V.  Staffordshire  Potteries 
Waterworks  Co.  L.  R. 
8  Ch.  142,  4  Eng.  Rep. 
(Moak's  7wi€ii)  821 456' 


664' 


138' 
593' 


155* 

1559 
61* 


....    110' 


2942 

342' 
531' 


250' 
4565 
6563 


XXX 


TABLE    OF    CASES. 


Clussman  v.  Long  Island  R.   Co. 

9  Hun,  618 19== 

Clute  ®.  Fisher,  65  Mich.  48,  8 

AVest.  Rep.  121 517' 

Coates  «.  Missouri,  K.  &  T.  R.  Co. 

61  Mo.  38 654- 

Cobb  V.  Bennett,  75  Pa.  326.-539,  540' 
v.  Davenport,  32  N.  J.  L. 

369 378^  5013 

v.  Portland,  55  Me.  381 ...   3353 

V.  Smith,  16  Wis.  661 427= 

Coburn,  Ex  parte,  1  Cow.  .568...   185^ 

V.  Ames,  53  Cal.  385 79^ 

Cocker  ».  Cowper,  1  Cromp.  M.  & 

R.  418 181' 

Cockerham  v.  Nixon,  11  Ired.  L. 

269_ 6043,  6065 

Coddington  v.  Brooklyn  C.  R.  Co. 
102  N.  Y.'66,  2  Cent. 

Rep.  913 363' 

Codman  v.  Evans,  1  Allen,  443--    265^ 

«.  Evans,  1  Allen,  446 163' 

1}.  Evans,  5  Allen,  310  ....    189^ 
Coffin  1}.  Field,  7  Cush.  355- .6018,  eoS'* 
V.  Left  Hand  Ditch  Co.   6 

Colo.  443 447 

V.  Talman,  8  N.  Y.  465 220^ 

V.  Vincent,  12  Cush.  98.--    601' 
Cohen  v.  New  York,  113  N.  Y. 
533,  4  L.  R.  A.  406... 

- 101',  333-* 

«.  New  York,  113  N.  Y.  536, 

4L.R.  A.  408 75'  247^ 

v.  New  York,  1 13  N.  Y.  537     99' 

Cokerw  Birge,  10  Ga.  336.- 1319 

Colburn  ».  Richards,  13  Mass.  420  443« 
Colchester  v.  Brooke,  7  Q.  B.  339 

- -- 500^  540' 

Cole  v.  Eastham,  133  Mass.  65...   496' 
V.  Hughes,  54  N.  Y.  445.. 

2203,  222,  222' 

«.  Sprowl,  35  Me.  161.-79%  153' 
Coleman  v.  Kansas  City,  St.  .J.  & 
C.  B.  R.   Co.  36    Mo. 

App.  476 435-3 

Coleman's  App.  62  Pa.  274 573^ 

Coleman's   App.  62  Pa.  275 174' 

Collett  V.  London  &  N.  W.  R.  Co. 

16  Q.  B.  984-.-- 5683 

Collins  V.  Benbury,  3  Ired.  L.  277, 

5  Ired.  L.  118- - 51 4^ 

«.  Chartiers  Valley  Gas  Co. 
131  Pa.  143,  6  L.  R.  A. 

280 286,287 

V.  Ewing,  51  Ala.  101 487' 

V.  Ewing,  51  Ala.  102 

.- ----480'  \  4848 

v.  Groseclose,  40  Ind.  414. 

644^  647- 

V.  Hatch.  18  Ohio,  523 603"' 


Collins  V.  Howard,  65  N.  H.  — . . 

403«,  412',  417^ 

V.  Larkin,  1  R.  I.  219 eOl^^ 

«.  Leafey,  124  Pa.  203 144= 

V.  New  York  Cent.  &  H.  R. 

R.    Co.     5   Hun,    499, 

affd.  71  N.  Y.  609---.    669* 
V.  New  York   Cent.  &  H. 

R.  R.  Co.    5  Hun,  503  6483 
V.  Prentice,  15  Conn.  39  .- 

....1696,  174* 

V.  Selden,  L.  R.  3  C.  P.  498, 

37  L.  J.  N.  S  C.  P.  233     24^ 
V.  Waltham,  151  Mass.  196  306*  ' 
Collyer  v.    Pennsylvania  R.   Co. 

49  N.  .L  L.  59,  4  Cent. 

Rep.  568 1332,  1463 

Colorado  Cent.  R.  Co.  v.  Holmes, 

5  Colo.  197 -.   365-^ 

Columbia  College  v.  Lynch,  70  N. 

Y.  440 2043,  2243 

V.  Lynch,  70  N.    Y.   447, 

448 158^ 

•D.  Lynch,  70  N.  Y.  448  .-.  158* 
®.  Thacher,  10  Abb.  N.  C. 

235.-- 2043 

Columbus  V.  Hydraulic   Woolen 

Mills  Co.  33  Ind.  435- 

2915,292',  3379,  4563- 

v.  Jaques,  30  Ga.  506 79' 

Columbus  &  I.  C.  R.  Co.  ■».  Ar- 
nold, 31  Ind.  174 145*^ 

Columbus   Gas   Co.  v.  Freeland, 

13  Ohio  St.  392 

--- 83,  155',  278 

Comerford  v.  Dupuy,  17  Cal.  310.   593' 
Commings  v.  Stevenson,  76  Tex. 

643-- 10^ 

Commonwealth  v.  Alger,  7  Cush. 

53 3813,468',  4923 

V.  Alsrer,  7  Cush.  53,  68...  510' 
V.  Alger,  7  Cush.  53,  82, 104  390' 
«.  Alger,  7  Cush.  53,  86,  96     133 

V.  Alger,  7  Cush.  63 3783 

«.  Alger,  7  Cush.  71 382' 

v.  Alger,  7  Cush.  75- 882'^ 

«.  Bailey,  13  Allen,  541--. 

.- 495',  536' 

v.  Barber,  143  Mass.  560,  3 

New  Eng.  Rep.  901  ..    541 « 

«.  Beale,  5  Pick.  514 603^ 

V.  Bean,  14  Gray,  53-.6038,  6033 

V.  Boston,  97  Mass.  555 113' 

V.  Breed,  4  Pick.  460 3743 

V.  Central  Bridge  Corp.  12 

Cush.  243,  344 470* 

V.  Chapin,  5  Pick.  199,  16 

Am. Dec.386. 3773,3784. 

416-2,  5013,  5131^  5301  3^ 

531 5 «,  5343,  540^  5503,  560'- 


TABLE    OF    CASES. 


XXXI 


Commonwealth  v.  Charlestown,  1 

Pick.  180.. 3791,  405» 

V.  Charlestown,  1  Pick.  Ib6, 

note  l..-dl4\  5803,  rysV",  500^ 
«».  Curtis,  9  Allen,  266  ....  60-^8 
V.  Eliot,  146  Masfi.  5,  5  New 

Eug.  Rep.  541 5416 

V.  Erie  &    N.  E.  R.  Co.  27 

Pa.  339 2472 

V.  Essex  Co.  13  Gray,  247  534^ 
■V.  Essex  Co.  13  Gray,  249  532' 
V.  Goodwin, 122  Mass.  19,  35  13^' 
V.  Gowen,  7  Mass.  378....  70^ 
V.  Rulings,  129  Pa.  317...  487^ 
V.  Kine:.    150   Mass.  221,    5 

L.'^R.  A.  536-... 3728 

V.  Labey,  14  Grav,  91 620^ 

V.  Low.  3  Pick.  408 236' 

V.  Manchester  (]\Iass.)  9  L. 

R.  A.  236.-4955,  4963  4,  5311 
V.  Manimon.  136  Mass.  456, 

458 536' 

V.  Merriam,  14  Pick.  518..  620^ 
V.  Moorehead,  118  Pa.  344, 

10  Cent.  Rep.  611.. 71^  103* 
V.  Nashua  &  L.  R.  Corp.  2 

Gray,  54.. 35',  247^ 

V.  Nashua  &  L.  R.  Corp.  2 

Gray,  56 70^ 

V.  Newbury,  2  Pick.  51...  236* 
0.  Old  Colony  &  F.  R.   Co. 

14  Gray,  93 247^  262« 

V.  Passmore,  1  Serg.  &  R. 

217 249 

V.  Passmore,  1  Serg.  &  R. 

219... 2473 

«.  Patterson,  138  Mass.  498, 

500 149" 

IJ.  Pierce,  11  Gray,  447 620^ 

«.  Richardson,    142    Mass. 

71,  2  New  Eng.  Rep. 

153... 5416 

V.  Roxbury,     9   Gray,   451 

378^  4923 

V.  Roxbury,   9  Gray,   451, 

485 841' 

V.  Roxbury,  9  Gray,  492  . .  378'^ 
V.  Roxbury,9Gray,526,  527  536' 
V.  Ruggles,  10  Mass.  391 ..  5316 
V.  Stodder,  2  Cush.  562  ...  152'^ 
V.  Tewksbury,  11  Met.  55.  390' 
V.  Tiffany,  119  Mass.  300.. 

496',  532'  6,  5496 

V.  Tolman,  149  Mass.  229. 

3L.  R.  A.  747 471' 

«.  Turner,  145  Mass.  296,  5 

New  Eng.  Rep.  265  ..638'  * 

V.  Upton,  6  Gray,  476 71* 

T.  Vincent,  108  Mass.  441.. 

496',  5013 


ComuKniwealth  e.   Vincent,   108 

Mass.  441,447 373',  889'' 

V.  Vincent,  108  Mass.  446.    532' 
V.  Walden,  8  Cush.  558...      13' 

V.  Webb,  6  Rand.  726 478* 

V.  Wright,  Thach.  Cr.  Cas. 

211 468' 

Compton  V.  Hawkins  (Ala.)  9  L. 

R.  A.  387... 359'.  300*,  565* 
Concanan  v.  Boynton,  76  Iowa, 

543. 269' 

Cone  V.  Hartford,  28  Conn.  863..    292' 
Congress  &  E.  Spring  Co.  v.  Ed- 
gar, 99  U.  S.  645,  25  L. 

ed.  487 587', 

6O43,  6O92,    61 95,    6293,    6301 
Congreve  v.  Morgan,  18  N.  Y.  84 

27*,  110,  113' 

V.  Smith,  18N.  Y.  79 

523,  1084,  109' 

«.  Smith,  18  N.  Y.  83 833-' 

Conhocton  Stone  Road  «.  Buffalo, 
N.  Y.   &  E.  R.  Co.  51 

N.  Y.  573 44,  59,  60 

Conklin  v.  Boyd,  46  Mich.  56... 

235'",  4262- 

Conn  V.  May,  36  Iowa,  241 644= 

Connecticut,  The,  103  U.  S.  710, 

26  L.  ed.  467-.-. 369' 

Connecticut  &  P.  R.  R.  Co.  v. 

Holton,  33  Vt.  48 241' 

Connehan  v.  Ford,  9  Wis.  240...  560' 
Conner  v.  Paxson,  1  Blackf.  168.. 487'  2 
Connolly  t).  Ross,  11  Fed.  Rep.342  369- 
Conrad  v.  Ithaca,  16  N.  Y.  158..  342* 
Courow  V.  Little,  115  N.  Y.  887, 

5L.  R.  A.  693 183^ 

Continental,    The,    81    U.    S.    14 

Wall.  345,  20  L.  ed.  801   369' 
Contra   Costa  C.    M.    R.   Co.   v. 

Moss,  28  Cal.  323 89'' 

Converse  v.  Walker,  30  Hun,  596     23* 
Conway  v.   Taylor,   66    U.    S.    1 
Black,  603,   17  L.  ed. 

191 .479*,  486 

Cook  ».  Bath,  L.  R.  6  Eq.  177...     79'' 
V.  Burlington.  30  Iowa,  94, 

6  Am.  Rep.  649 397' 

V.  Burlington,  80  Iowa,  94, 

36  Iowa,  357 564' 

D.  Champlain  Transp.  Co. 

1  Denio,  91 667 

V.  Champlain  Transp.  Co. 

1  Denio,  96,  97,102...    665' 

«.  Hull,  3  Pick.  269 443* 

v.  McClure,  58  N.  Y.  437, 

17  Am.  Rep.  270 394' 

V.  Mayor,  L.  R.  6  Eq.  177.   5793 
V.  Mayor,  L.  R.  6  Eq.  177- 

179.. 578^^ 


XXXll 


TABLE    OF    CASES. 


€ook  V.  Morea,  33  Ind.  497 622* 

V.  Stearns.  11  Mass.  533...    202' 
Cooke  V.  Waring,  2  Hurl.  &  C. 

331 633^ 

V.  Waring,    2   Hurl.  &  C. 

332_ 5951 

Cooley  V.  Ei^sex,  37  N.  J.  L.  415.  339" 
Coolidge  V.  Dexter.  129  Mass.  167, 

169,  note 255^ 

V.  Learned,  8  Pick.  504.. .564'  ^ 
V.  Williams,  4  Mass.  140_-   495' 
Coonley  v.  Albany,  57  Hun,  327.   392^ 
Cooper  V.  Hubbuck,  7  Jur.  N.  S. 

457-- - 458^' 

V.  Langway,  76  Tex.  121- .     76« 

V.  Wiliiams,  5  Ohio,  391..   454^ 

Coor  ■».  Rogers,  97  N.  C.  143....    599» 

Copper  V.  Dolvin,  68  Iowa,  757.-    270* 

Corby  v.  Hill,  4  C.  B.  N.  S.  556. 

16'.  203  5,  1504 

V.  Hill,  4  C.  B.  K  S.  556, 

567 150 

Corcoran  v.  Nail  or,   6  Mackey, 

580 211' 

Corfield  v.  Coryell,  4  Wash.  C.  C. 

371 ..379^  495« 

Corlett  V.  Leavenworth,  27  Kan. 

673 1295« 

Corliss  V.  Smith,  53  Vt.  532-.586^  625^ 
Cornelius  «.  Grant,  7   Sc.    Sess. 

Cas.  4 628' 

Corning  v.  Gould,  16  Wend.  531- 

5765,  5776,  578^ 

v.  Lowerre,    6  Johns.  Ch. 

439,  2  N.  Y.  Ch.  L.  ed. 

178.- - 4773 

V.  Troy  Iron  &  N.  Factory, 

34  Barb.  485.. 287^ 

V.  Troy  Iron  &  Nail  Fac- 
tory, 40  N.  Y.  220....   4565 
Cortelyou  v.  Van  Brundt,  2  Johns. 

357.. 188« 

V.  Van  Brundt,    2  Johns. 

362 378^  379' 

Cotes  V.  Davenport,  9  Iowa,  227.  305^ 
Cotterill  v.  Starkey,  8  Car.  &  P. 

691 136* 

Cotton  «.  Pocasset  Mfg.  Co.   13 

Met.  429- 428'' 

Cottrill  V.  Myrick,  12  Me.  222.-- 

53r,  5325 

Couch  V.  Steel,  3  El.  &  Bl.  402..  662^ 
Coupland  v.  Hardingham,  3  Camp. 

398 105^ 

Coursin's  App.  79  Pa.  220 201* 

Couts  V.  Neer.  70  Tex.  468 28* 

Covert  V.  O'Conner,  8  Watts,  477.  404' 
Covington  v.  Bryant,  7  Bush,  248  100^ 
Cowdrey  v.  Woburn,  136  Mass. 

409 4545 


Cowell  V.  Thayer,  5  Met.  253 

.167»,  419' 

Cowles  V.  Balzer,  47  Barb.  562.. 

5942,  596' 

V.  Kidder,  24  H.  H.  364... 

433',  545'» 

Cowley  ».  Sunderland,  6  Hurl.  & 

N.  565 583' 

Cowling  'B.  Higginson,  4  Mees.  & 

W.  245 -...243',  265* 

Cox  V.  Burbridge,  13  C.  B.  N.  S. 

430 6O75 

V.  Burbridee,  13  C.  B.  N.  S. 

438,  32  L.  J.  N.  S.  C. 

P.  89 588',  6O52 

i\  Matthews,  1  Vent.  237..  175' 
».  Murphy,  82  Ga.  623  ....  605' 
V.  Russell,    6   Barn.  &  C. 

566 ...259«,  260 

V.  State,  SBlackf.  193 

3765«,  377' 

Coxe  V.  Robbins,  9  N.  J.  L.  *384 

591',  592'',  5935 

Crabtree  v.  Baker,  75  Ala.  91.  51 

Am.  Rep.  424.... 290',  3045 
Crafter  v.  Metropolitan  R.  Co.  L. 

R.  1  C.  P.  300 139 

Cragin  v.  New  York  Cent.  R.  Co. 

51  N.  Y.  61. 639« 

Craig  V.  Rochester  City  «fc  B.  R. 

R.  Co.  39N.  Y.  404..     93' 

Grain  v.  Fox,  16  Barb.  184 578* 

Crandall  v.  Goodrich  Transp.  Co. 

16  Fed.  Rep.  75. 654' 

Crane  v.  Winsor,  2  Utah,  248 446* 

Craven  v.  Rose,  3  Rich.  L.  72...    577*^ 
Crawford  v.  Allegheny  (Pa.)  23 

W.  N.  C.  141 567' 

V.  Delaware,  7  Ohio  St.  459  82' 
1).  Parsons,  63  N.  H.  438..  572' 
V.  Rambo,  44  Ohio  St.  279, 

4  West. Rep. 446. 295",  461'  * 
V.  The  Wells  City,  38  Fed. 

Rep.  47 .-    156' 

Crawfordsville  v.  Bond,  96  Ind. 

236. 

.290^  312',  321'.  326*,  327'^ 
Crawshaw  «.  Sumner,  56  Mo.  523  233' 
Creed  «.  Hartmann,  29  N.  Y.  591 

136',  333* 

Creigliton  t\  Kaweah  Canal  &  I. 

Co.  67  Cal.  221. 287- 

Cressey  v.  Northern  R.  Co.  59  N. 

H.  564 664" 

Crichton  v.  CoUery,  Ir.  R.  4  C. 

L.  508 --.   498* 

Crittenden  v.  Wilson,  5  Cow.  165 

270*,  430' 

Crocheron  v.  North  Shore  S.  I. 

F.  Co.  56  N.  Y.  656.    138' 


TABLE   OF    CASES, 


XXXlll 


Crocker©.  Knickerbocker  Ice  Co. 

92  N.  Y.  ess 127-» 

•Crogan  v.  Schiele,  53  Conn.  186, 

1  New  Eng.  Rep.  311 

....25",  26^  73^  118',  122'  « 
Crogate  v.  Morris,  Brovvnl.  197..  644^ 
Crolley  v.  Minneapolis  &  St.  L. 

K.  Co.  30  Minn.  541.  487^ 
Crommelin  v.  Coxe,  30  Ala.  318-  79' 
Cronin  v.  People,  82  N.  Y.  318..  152-' 
Cronkhite  v.  Croukhite,  94  N.  Y. 

323 182',  184« 

Crooker  v.  Bragg,  10  Wend.  260  441^ 
Cropper  v.  Matthews,  2  Sid.  127.  619^ 
Crosland  v.  Pottsville,  126  Pa.  511  470^ 
Cross  V.  Lewis,  2  Barn,  cfe  C.  586  178 
T.  Morristown,  18  N.  J.  Eq. 

305... - 71' 

V.  Morristown,  18  IST.  J.  Eq. 

311 71" 

Orossley  v.    Lightowler,  L.  R.  2 

Ch.  App.  478 580^ 

«.  Lightowler,  L.  R.  2  Cb. 

App.  482 571' 

Crouch  V.  Charleston  &  S.  R.  Co. 

21  S.  C.  495 472 

V.  London  &N.  \V.  R.  Co. 

14  C.  B.  291 133' 

Crowell  V.   Sonoma  County,  25 

Cal.   315 34P 

Crowhurst  v.   Amersham  Burial 

Board,  L.  R.  4  Exch. 

Div.  5. 1235 

Cubit  V.  O'Dett,  51  Mich.  347....    311'* 
V.  O'Dett,  51  Mich.  350...  635" 
Cubitt  V.  Porter,  8  B  irn.  &  C.  257 

209-  ^   213 
Cuflf  V.  Newark  &  N.  Y.  R.  Co.  ' 

35  N.  J.  L.  17.. 1493 

Culver  0.  Streator,  130  111.  238,  6 

L.  R.  A.  270 335' 

Cumberland  &  O.    C.    Corp.    v. 

Portland,  62  Me.  505.  351^ 
Cumberland    Valley    R.    Co.    v. 

Hughes,  11  Pa.  141...   252' 
Cummings?).  Barrett,  10  Cush.  186  455- 
V.  Riley,  52  N.  H.  368....    622^ 
V.  St.  Louis,  90  Mo.  259,  7 

West.  Rep.  274 78' 

Cummins  ti.  Seymour, 79  Ind.  491, 

41  Am.  Rep.  618 

312',  327-,  3282 

Cunningham  ®.  Cambridge   Sav. 

Bank,  138  Mass.   480 

413,49' 

Curling  v.  Wood,  16  Mees.  &  W. 

628 5663 

Curran  v.  Boston  (Mass.)  8  L.  R, 

A.  243 347' 

».  Louisville,  83  Ky.  628..   580* 


Currier  «.  West  Side  E.  P.  Co.  6 

Blatchf.  487 76' 

Curry  v.  Ut.  Sterling,  15  111.  320.    184' 

Curtis  «.  Angier,  4  Gray,  547 188'^ 

V.  Eastern  R.  Co.  98  Mass. 

428. 349' 

V.  Eastern  R.  Co.  98  Mass. 

428,  431 348* 

V.  Francis,  9  Cush.  437...   573'' 
V.  Keesler,  14  Barb.  511.. 

....1883,  405',  5503 

V.  La  Grande    Water  Co. 

(Or.)lOL.  R.  A.  484..    445-» 
V.  Noonan,  10  Allen,  406.. 

188',  571' 

V.  Rochester  &  S.  R.  Co. 

18  N.  Y.  534 155»,  612' 

Curtiss  V.  Ayrault,  47  N.  Y.  73..  168* 
V.  Ayrault,  47  N.  Y.  75...  187 
V.  Ayrault,  47  N.  Y.  79... 

205-,  217',  241'' 

«.  White,  Clarke,  Ch.  389.   2203 
Cusbing  V.  Adams,  18  Pick.  110.   2443 
v.  Bedford,  125  Mass.  526. 

319',  336-3,853' 

V.  Bedford,  125  Mass.  528.  3343 
Cusick  V.  Adams,  115  N.  Y.  55. 

23',  263,  361« 

Cults  V.  Hussey,  15  Me.  237 378* ' 


D. 


Dalay  v.  Savage,  145  Mass.  38,  4 

New  Eng.  Rep.  863.. 

44',  49',  53'*,  63,  73' 

Dalton  V.  Angus,  L.  R.  6  App. 

Cas.  740 

V.  Angus,  L.R.  6  App.  Cas. 

829 

V.  Bowker,  8  Nev.  190.... 

V.  Denton,  1  C.  B.  N.  S.  672  566* 

Damp  V.  Dane,  29  Wis.  428 481' 

Dana  v.    .Jackson   Street   Wharf 

Co.  31  Cal.  120 378'2' 

Dauaher  ■«.  Brooklyn,  51  Hun, 563, 

affirmed,  119  N.Y.  241, 

7L.  R.  A.  592.... 3083 
Daniel  v.  Metropolitan  R.  Co.  L. 

R.  3C.  P.  216. 

V.  Metropolitan   R.  Co.  L. 

R.  5  H.  L.  45,  40  L.  J. 

N.  S.  C.  P.  121 

Daniel  Ball,   The,   77   U.   S.  10 

Wall.  557, 19  L.ed.  999 

370^  3773,  4033,  406 

The,  77  U.  S  10  Wall.  563, 

19  L.  ed.  1001 3703 


199 

232 
445' 


309' 
1393 


24* 


C 


XXXIV 


TABLE    OF   CASES. 


Daniels  v.  Citizens  Sav.  Inst.  127 

Mass.  534.- 1673,  419^ 

V.  Clegg,  28  Mich.  33,  42..     dP 

V.  Lebanon,  58  N.  H.  284.127-* ' 

V.  Potter,  4  Car.  &  P.  262.    61 1^ 

Dannaker  v.  Riley,  14  Pa.  436...   232'^ 

Dant  V.  Dist.  of  Columbia,  91  U. 

S.  557,  23  L.  ed.  446..   342' 
Danville,   H.   &    W.    R.    Co.   v. 

Com.  73  Pa.  38 73^ 

Dargan^.  Mobile,  31  Ala.  469.-335' » 

Dark  v.  Johnston,  55  Pa.  164 182^ 

Darker  «.  Beck  (Sup.  Ct.)  32  N. 

Y.  S.  R.  193 1622 

Darling  v.  Bangor.  68  Me.  110...    329^ 
V.  Bang.r,  68   Me.  112  .-.    330' 
Darlington  v.  Painter,  7  Pa.  473- 

2633,  425,  426',  428^ 

Darwin  v.  Upton,  2  Wm.  Saund. 

175 178 

Dauenehauer  v.  Devine,  51   Tex. 

480_- --..211^  2122 

Davenport  v.  Lamson,  21  Pick.  72  238^ 
V.  Ruckman,  10  Bosw.  20, 

37  N.  Y.  568 ..    148^ 

V.  Ruckman,  37  N.  Y.  568 

441,  52^,  1102,  115',  342',  3432 
Davenport  &  N.  W.    R.  Co.  v. 
Renwick,    103    U.    S. 

180,  26L.  ed.  51 -    386^ 

Davids  ».  Harris,  9  Pa.  503 220^  ^ 

Davidson  v.  Boston  &  M.  R.  Co. 

3  Cush.  91-105 381 

V.   Hutchinson   (N.   J.)   18 

Atl.  Rep.  977 299-* 

V.    Michigan  Cent.  R.  Co. 

49  Mich.  431 636^ 

Davies  v.  3Iarshall,  9  Week.  Rep. 

866.-.- 1872 

V.  Williams,  16  Q.  B.  546.   6482 
Davis  V.  Amer.  Society  for  Prev. 
Cruelty  to  Animals,  6 
Daly,  85,  16  Abb.  Pr. 

N.  8.  78- --..     775 

V.  Campbell,  23  Vt.  236...   616' 
«.  Central    Congregational 
Society,  139  Mass.  367, 

371 5683 

«.  Fuller,  12  Vt.  178 2872 

V.  Getchell,  50  Me.  602....   443« 
V.  Getchell,  50  Me.  602,  79 
Am.    Dec.    636,     and 

note,  638-645.. 441^ 

V.  Jenkins,     5    Jones,    L. 

290   540' 

1).  Londgreen,  8  Neb.  43..    299^ 
V.  New  York,  14  N.  Y.  506 

--702,  72^  2473 

V.  New   York,    14  N.    Y. 

524 103,  751 


!  Davis  V.  Reamer,  104  Ind.  318,  3 

West.  Rep.  317 567* 

V.  The  Seneca,  Gilp.  10,  34  371* 

«.  The  Seneca,  Gilp.  28 370* 

V.  Winslow,  51  Me.  364,  81 

Am.  Dec.  573-. 

70,  377*,  402',  404«,  4122,  568* 
Dawson  v.  Manchester,  S.  &  L. 

R.  Co.  7  Hurl.  &  N. 

1037 155* 

Dawtry  v.  Huggins,  Clayt.  32,  pi. 

56 594* 

Day  V.  Allender,  22  Md.  511 

237«,  564' 3 

V.  Mt.  Pleasant,  70  Iowa, 

193- 119* 

V.  Stetson,  8  Greenl.  370- .    485* 
v.  Walden,  46  Mich.  575. .580-* 
Dayton  v.  Pease,  4  Ohio  St.  80..    342' 
Dean  v.  Chicago  &  N.  R.  Co.  43 

Wis.  308 635'2 

V.  Clayton,  7  Taunt.  489-. 

15,  543',  628' 

V.  McCarty,  2  U.  C.  Q.  B. 

448 645» 

Deane    v.    Randolph,    132  Mass. 

475.... 334*,  336',  3413,  351 
Deansville  Cemetery  Asso. ,  Be,  66 

N.  Y.  569,  5  Hun,  482  89* 
Dearth  v.  Baker,  22  Wis.  73-586«,  607* 
De  Bary  Baya  Merchants  Line  v, 

Jacksonville,  T.  &  K. 

W.    R.    Co.    40    Fed. 

Rep.  392-- 568^  569' 

Debolt??.  Carter,  31  Ind.  355 236* 

De  Camp  v.  Sioux  City,  74  Iowa, 

393. -- --.    6603 

Decatur  Gas  Light  &  C.  Co.  v. 

Howell,  93  111.  19.-..  288* 
Decker  v.  Baltimore  &  N.  Y.  R. 

Co.     1     Inters.    Com. 

Rep.  434,  30  Fed.  Rep. 

733 -   466' 

V.  Baylor,  133  Pa.  168 357» 

V.  Gammon,  44  Me.  322... 

-...586*,  587',  593' 

Deerfield  v.  Arms,  17  Pick.  41,  28 

Am.  Dec.  276..- 

360',  396',  397** 

V.  Conn.  River  R.  Co.  144 

Mass.  625,  4  New  Eng. 

Rep.  18 9762,  1768.  239* 

Defer  v.  Detroit,  67  Mich.  346, 11 

West.  Rep.  530 -.-2932,  306'' 
Delahoussaye  i).  Judice,   13  La. 

Ann.  587 --..2953,  4255 

Delaney  v.   Errickson,   11   Neb. 

533 5943 

Delaplaine  v.  Chicago  &  N.  W. 

R.  Co,  43  Wis.  214..   359* 


TABLE    OF    CASES. 


XXXV 


Delaware,   L.   &  W.   R.   Co.  «. 

Central  Stock  Yard  & 

T.    Co.  43  N.   J.    Eq. 

71,  9  Cent.  Rep.  111..     88^ 

V.  Napheys,  90  Pa.  135.i;39\  147' 

V.  Salmon,  39  N.  J.  L.  300 

6.'54i2 

V.  Salmon,  39  N.  J.  L.  311   664' 
V.  Toffey,  38  N.  J.  L.  525.   363^ 
Delger  v.  St.  Paul,  14  Fed.  Rep. 

567..-. -.342',  343= 

Delhi  V.  Youmans,  45  N.  Y.  362 

280,  2b3^  284 

V.  Youmaus,  50  Barb.  316- 

320 -     123 

Delory  v.  Canny,  144  Mass.  445, 

4  New  Eng.  Rep.  258-    130^ 

De  Lovio  v.  Bolt,  2  Gall.  398 

370^  371* 

De  Luze  v.  Bradbury,  25  N.  J. 

Eq.  70- 186^  2412^ 

Delzell  V.  Indianapolis  «fe  C.  R. 

Co.   32  lud.  45---2.52^  488^ 
Dempsey  v.  Kipp,  61  N.  Y.  462-. 

--.182',  1848 

Den  V.  Jersey  Co.  56  U.  S.    15 
How.    426,    14  L.  ed. 

757 494= 

De  Necochea  v.   Curtis,  80  Cal. 

397 4488,  4492 

V.  Curtis,  80  Cal.  404 446'' 

Denning  v.  Roome,  6  Wend.  651.  2878 
Dennis  v.  Huyck,  48  Mich.  620-.  635" 

Denny  v.  Correll,  9  Ind.  72 594^' 

Denton  v.  Leddell,  23  N.  J.  Eq. 

64 2413 

Denver  v.  Bayer,  7  Colo.  113 82' 

V.  Capeli,  4  Colo.    25,   34 

Am.  Rep.  63... 330' 

V.  Dean,  10  Colo.  375 342' 

V.  Dunsmore,  7  Colo.  328. 

342',  343= 

V.  Rhodes,  9  Colo.  554..-. 

-.  8046,  305«, 

324',   328*.  3302,  33^1^  3421 
Denver  &  R.  G.  R.  Co.  v.  Harris, 
122  U.  S.  597,  30  L.  ed. 

1146 6573 

Dering  v.  Earl  of  Winchelsea,  1 

Cox,  Cas.  348 226 

Dermont  v.  Detroit,  4  Mich.  435-  329^ 
Derrickson  v.  Springer,  5  Harr.  21  234' 
Derry  v.  Flitner,  118  Mass.  131 -.  107^ 
Des  Plaines  v.  Poyer,  123  111.  348, 

12  West.  Rep.  760..-.       9-* 
Detroit  v.  Beecher,  75  Mich.  454. 

122»,  595« 

V.  Blackeby,  21  Mich.  84.-  3413 
D.  Corey,  9  Mich.  165.. 114",  333' 
V.  Corey,  9  Mich.  165,  184     338' 


Detroit     City    R.    Co.    v.    Mills 

(Mich.) 4  Harvard  Law 

Rev.  260 251» 

Devlin  v.  Wabash,  St.  L.  &  P.  R. 

Co.     87    Mo.     545,    4 

West.  Rep.  54 137* 

Devonshire    v.   Eglin,    14  Beav. 

530 183» 

Dewein  v.    Peoria,  24  111.  App. 

396... 333» 

Dewey  v.  Leonard,  14  Minn.  153 

135^  642*,  645* 

Dexter  v.    McCready,   54  Conn. 

171,  2  New  Eng.  Rep. 

838 611 

v.  Providence       Aqueduct 

Co.  1  Story,  387   ....   280' 
V.  Tree,  117  111.  532,  5  West. 

Rep.  897 1803,  234-*,  237* 

Diamond    v.   Northern   Pac.    R. 

Co.  6  Mont.  580 648* 

Diamond    Match     Co.    v.    New 

Haven,  55  Conn.  510, 

6  New  Eng.  Rep.  174.   315 
Diamond  State  Iron  Co.  v.  Giles 

(Del.)  9  Cent.  Rep.  577 

-..20^  361* 

Dickey  v.  Maine  Teleg.  Co.    46 

Me.  483. 251' 

Dickinson  v.  New  York,  28  Hun, 

256 - -.-.    333* 

V.  Whiting,  141  Mass.  414, 

2  New  Eng.  Rep.  356.    242» 
p.  Worcester,  7  Allen,  19-. 

1473,  296«,  3022,  3035 

Dickson  «.  Burnhara,  14  U.  C.  Ch. 

594 545-» 

V.  HoUister,  123  Pa.  421  .- 

27*,  115',  130* 

V.  McCoy,  39  N.  Y.  400 .. . 

6076,  6103* 

Diedrich  v.  Northwestern  U.   R. 

Co.  43  Wis.  248.  .1845,  359* 

Dill  V.  Wareham,  7  Met.  438 495' 

Dillard  v.  Moore,  7  Ark.  166 6343 

Dilling  V.  Murray,  6  Ind.  324,  63 

Am.  Dec.  385 425*,  451* 

V.  Murray,  6  Ind.  326 411* 

Dillman  v.  Hoffman,  38  Wis.  559 

17P,  576^  577* 

Dillon  V.  Acme  Oil  Co.  49  Hun, 

565 80*,  275 

Dilworth's  App.  91  Pa.  247 10* 

Dimes  v.  Petley,  15  Q.  B.  276...    469^ 
Dinwiddle  v.  State,  103  Ind.  101, 

1  West.  Rep.  138 62G» 

Dist.  of  Columbia  v.  Armes,  107 

U.  S.  519,  27  L.  ed.  618  342' 
V.  Baltimore  &  P.  R.   Co, 

1  Mackey,  316,  317...     39* 


XXXVl 


TABLE    OF    CASES. 


Ditchett  V.  Spuytea  Duyvil  &  P. 
M.  R.  Co.  67  N.  Y. 
425 521 

Diveny  v.  Elmira,  51  N.  Y.  506.   343'^ 

Dixon  V.  Baker,  65  111.  518 330^ 

V.  Bell,  5  Maule  &  S.  198, 

199 - 367' 

^.Wilkinson,2McArth.  425   198^ 

Doane  v.  Badger,  12  Mass.  65,  70  158' 

i>.  Willcutt,  5  Gray.  328..-   378'' 

Dobiecki  v.  Sharp,  88  N.  Y.  203..    19^ 

Dockfrty  v.  Hutson  (Ind.)  25  N. 

E.  Rep.  144 .616^  632' 

Dodd  V.  Holme.  1  Ad.  &  El.  493 

38^  192,  199^  200^ 

Dodge  «.  Essex  County  Comrs.  3 

Met.  380_.. 266' 

t).  McClintock,47N.H.386  181' 
v.  Pennsylvania  R.  Co.  43 

N.  J.  Eq.  351, 10  Cent. 

Rep.  655 738,  jcP 

V.  Stacy,  39  Vt.  558 577'= 

Dodson  V.  Mock,  4  Dev.  &  B.  L. 

146 628' 

Doe  V.  Beebe,  54  U.  S.  13  How. 

25,  14L.  ed.  35 

372'  ^  378\  379' » «,  396'*,  399* 
Doenner  v.  Tynan,  38  How.  Pr. 

176.. 2473 

Doerbaum  v.  Fischer,  1  Mo.  App. 

149.. 302' 

Doggett  V.  Richmond  &  D.  R. 

Co.  78N.  C.  305.. 6593,  666^ 
Doherty  v.  Braintree,  148  Mass. 

495.  497 351 

«.  Waltham,  4Gray,  596..    368' 
Dolfinger  v.  Fishback,  12  Bush, 

474 6O42,  607^ 

Dolliff  V.  Boston  &  M.  R.  Co.  68 

Me.  173 172* 

«.  Boston  &  M.  R.  Co.  68 

Me.  176 166' 

Dolph  V.  Ferris,  7  Watts  &  S.  367  59P 
Donahoe  v.  Wabash,  St.  L.  &  P. 

R.  Co.  83  Mo.  560....       5^ 
Donaldson   v.  Wilson,  60  Mich. 

86,    1     Am.    St.    Rep. 

487,  and  note 19=* 

Donohue  v.  New  York.  3  Daly,  65  330' 
Donovan  v.  McAlpin,  85  N.  Y.  188  440^ 

Doody  V.  Vaughn,  7  Neb.  28 481' 

Dooley  «.  Sullivan,  112  Ind.  451, 

11  West.  Rep.  816.310%  333^ 
Doolrttle  ■».  Broome  Co.  18  N.  Y. 

155. 4778 

Doorman  v.  Jenkins,  2  Ad.  <&  El. 

256 613' 

Dority  v.  Dunning,  78  Me.  381,  3 

New  Eng.  Rep.  41 

105*  427«,  5735 


224* 
480= 
376= 


4753 

534^ 

47a« 

68^ 
136^ 


Dorman  v.  Bates  Mfg.  Co.  82  Me. 

438 .16r» 

Dorrity  v.  Rapp,  72  N.  Y.  307... 

199'^*,  200%  201' 

Dorsey  v.  St.  Louis,  A.  &  T.  H. 

R.  Co.  58  111.  67 8212* 

V.  St.  Louis,  A.  &  T.  H.  R. 

Co.  58  111.  68-. ..2045, 

Doty  ?j.  Graham,  5  Pick.  487 

V.  Strong,  1  Pin.  (Wis.)  316 
Dougan    v.   Cham  plain    Transp. 

Co.  56  N.  Y.  1-..138,  138' 
Dougherty  v.  Bunting,  1  Sandf.  1 

....75*, 

Doughty  V.  Conover,  42  N.  J.  L. 

193 

Douglass  V.  State,  4  Wis.  387 

Dovastonv.  Payne,  2 Smith,  Lead. 

Cas.  *205,  note. 

Dowlingi).  Allen,  74  Mo.  13 

V.  Hennings,  20  Md.  179.. 

233*,  577* 

Downing  v.  More,  13  Colo.  316..   448*^ 
Doyle  V.  Chicago,  St.  P.  &  K.  C. 

R.    Co.  77  Iowa,  607, 

4L.  R.  A.  420 143 

Drake  v.  Chicago,  R.  I.  &  P.  R. 

Co.  70  Iowa,  59 

V.  Earhart  (Idaho)  23  Pac. 

Rep.  541. 

v.  Hamilton    Woolen    Co. 

99  Mass.  579,  581 

V.  Hamilton    Woolen    Co. 

99  Mass.  580 424» 

«.  Hudson   River  R.  Co.  7 

Barb.  508 .728, 

V.  Mount,  33  N.  J.  L.  441. 
Draper  v.  Mackey,  35  Ark.  497.. 

Drew  V.  Gant,  1  br.  197 

V.  Gaylord  Coal  Co.  (Pa.) 

3  Cent.  Rep.  389-.137^ 

V.  Hilliker,  56  Vt.  641  .... 

Drewett  v.  Sheard,  7  Car.  &  P. 

465 188-, 

Driscoll  V.  Newark  &  R.  L.  »&  C. 

Co.  37  N.  Y.  637 

Drucker  v.  Manhattan  R.  Co.  106 

N.Y.  157,  8  Cent.  Rep. 

66 

Dudley  v.  Camden  «&  P.  Ferry 

Co.  42  N.  J.  L.  25... 

...488•-^  490-^3*, 

«.  Kennedy,  63  Me.  465 — 

79=3.  1265,  4753 

Duffies  V.  Judd,  48  Iowa,  256 595^ 

Duffy  v.  Dubuque,  63  Iowa,  171, 

50  Am.  Rep.  743 125= 

Dufour  V.  Stacey  (Ky.)  14  S.  W. 

Rep.  48 487« 

Duinneen  v.  Rich,  22  Wis. 550,  558  181' 


295' 

448^ 
455= 


935 

3633 

79' 
484' 

647' 
5358 

578* 

235* 


93' 


491' 


TABLE   OF    CASES. 


XXXVll 


Duke  of  Devonshire  v.  Lodge,  7 

Barn.  &  C.  36 537 

Dumont  v.  Kellogg,  29  Mich.  420  441^ 
V.  Kellogg,  29  Mich.  425  ..  41 P 
Dunbar  v.  Boston,  112  Mass.  75..  335" 
Duncomb's  Case,  Oro.  Car.  306..  68^ 
Dundas  v.  Lansing,  75  Mich.  499, 

5L.  R.  A.  143. 128' 

Dundy  «.  Chambers,  23  111.  370. .   486" 
V.  Chambers,  23  111.  373.. .   483^ 
Dunham  v.  Lamphere,  3   Gray, 

208.271 536'' 

Dunklee  v.  Wilton  R.  Co.  24  N. 

H.489 

166',  168'*,  172^  ^,  574",  576' 
Dunlap  V.  Snyder,  17  Barb.  561.   627^ 
V.  Wagner.  85  Ind.  529,  44 

Am.  Rep.  42 656%  657^ 

V.  Yoakum,  18  Tex.  582  ..   480' 
Dunn   V.  Hannibal   &   St.  J.  R. 

Co.  68  Mo.,  268 639« 

Dunning  v.  Bird,  24  111.  App.  270  OSS'* 
Durant  v.  Palmer,  29  N.  J.  L.  544 

.45^  48',  4^^  5P  \  114',  614 
Durel  V.  Boisblanc,  1   La.  Ann. 

407.... 166' 

Durham  ■».  Musselman,  2  Blackf. 

96,18  Am.  Dec.133. 597',  598' 

Durkin  v.  Troy,  61  Barb.  437 129'' 

Dusenbury  v.  Mutual  Teleg.  Co. 

11  Abb.  N.  C.  440-.-.     97« 
Dutton  V.    Strong,   66  U.    S.    1 
B]ack,"23,  17  L.  ed.  29 
..359',  478'  3,  559*,  563'^  ^4  5 
Dwinel  «.  Barnard,  28  Me.  554.. 

403^  404« 

v.  Veazie,  44  Me.  167 

403^  4046,  4132 

V.  Veazie,  44  Me.  167,  175. 

...80^  47P 

V.  Veazie,  50  Me.  479 413^ 

Dyer  v.  Depui,  5  Whart.  584....  571' 
V.  St.  Paul,  27  Minn.  457.  88' 
V.  Sanford,  9  Met.  395.... 

..187' 3  4,  201^571'^  578"«8 
Dygert  v.  Bradley,  8  Wend.  469.   610"^ 
v.  Schenck,  23  Wend.  446. 

110,  131'-,  247^  250' 

V.  Schenck,  23  Wend.  448.     71^ 


E. 


Eagle.  The,  75  U.  S.  8  Wall.  15, 

19L.  ed.  365 370 

Eakin  v.  Brown,  1  E.  D.  Smith, 

26 149^  273^ 

Earhart  o.  Youngblood,  27  Pa.  331 

006\  617^  6193 


Earl  V.  Beadleston,  10  Jones  &  S. 

294 398,  233' 

V.  DcHart,  12  N.  -J.  Eq.  280 

....303',  426» 

V.  De  Hart,    12   N.  J.  Eq. 

2K0,  287 476* 

V.  VanAlstine,  8  Barb.  630.58?'  * 
Earl  of  Sandwich  ».  Great  North- 
ern R.    Co.    L.  R.  10 

Ch.  Div.  707 457* 

East  End  St.  R.  Co.  v.  Doyle,  88 

Tenn.  747... 251^ 

Eastern  R.  Co.  v.  Allen,  135  Mass. 

13.. 550« 

Eastham  v.  Anderson,  119  Mass. 

526 540» 

East  Hampton  v.  Kirk,  6  Hun,  257 

378',  393' 

Eastman  v.  Amoskeag  Mfg.    Co. 

44  N.  H.  144 55 

V.  Meredith,  36  N.  H.  284. 

31P,  830',  337' 

v.  Meredith,  30  N.  H.  284, 

297-300... 3393 

V.  Meredith,  36  N.  H.  289- 

294 340',  344'» 

«.  Meredith,  36  N.  H.  295.  345' 
V.  St.  Anthony  Falls  Water 

Power  Co.   43    Minn. 

60-..- 395*6 

V.  Sanborn,  3  Allen,  594..  636'' 
East  Omaha  Land  Co.  ».  .Jeffries, 

40  Fed.  Rep.  386 395' 

Easton  v.  Pickersgill,  55  N.  Y.  315  88' 
East  St.  Louis  &  C.  R.  Co.  v.  Eis- 

entraut  (III.)  24  N.  E. 

Rep.  760-.. 298" 

East  Tennessee,  V.  &  G.  R.  Co. 

V.  Hull,  88  Tenn.  33..  3633 
Eaton  V.  Boston,  C.  &  M.  R.  Co. 

51  N.  H.  504.29P,  432S4355 
V.  Boston,  C.  &  M.  R.  Co. 

51  N.  II.  504,  510....  4542 
Eberhart  ».  Reister,  96  Ind.  478.   630* 

Ebner  v.  Estichter,  19  Pa.  19 577® 

Eckert  v.  Long  Island  R.  Co.  43 

N.  Y.  503.. 5* 

Eddy  «.  Chase,  140  Mass.  471,  1 

New  Eng.  Rep.  573.. 

..550«,  578* 

V.  St.  Mars,  53  Vt.  463....  398" 
Eddystone,  Tlie,  33  Fed.  Rep.  925  370» 
Edgerton  v.  New  York  &  H.  R. 

Co.  39  N.  Y.  227..-.  147* 
Edmondson  v.  Moberly,  98  Mo. 

523 326S  327« 

Edmund's  App.  (Pa.)  6  Cent.  Rep. 

433... -   205* 

Edmundson  v.  Pittsburgh,  M.  & 

T.  R.  Co.  Ill  Pa.  316  114> 


XXXVlll 


TABLE    OF    CASES. 


Edson  V.  Weston,  7  Cow.  278 490* 

Edwards  v.  New  York  &  H.  R. 
Co.  98  N.  Y.  245.-.. 

44,  48^,  53,  68^ 

«.  New  York  &  H.  R.  Co. 

98  N.  Y.  247 49' 

«.  New    York   &     H.    R. 

Co.  98   N.   Y.  248....     113 
Edwardsville   R.  Co.  v.  Sawyer, 

92  111.377 943 

Ehrgott  V.  New  York,  96  N.  Y. 

264. 

1072,    310S   342',  3432,  659' 
Eichels  v.  Evansville  St.  R.  Co. 

78Ind.  261 ...93*,  248^ 

Elder  v.  Burrus,  6  Humph.  358.. 

3773,  380^ 

®.  Burrus,  6  Humph.  358, 

366-... 389^ 

Eldred,  Re,  46  Wis.  530,  541.. 75*,  475=* 
Elgin  Hydraulic  Co.  v.  Elgin,  74 

111.  433 3273 

V.  Kimball,  90  111.  356..--    310"^ 
Elias  V.  Sutherland,  18  Abb.  N. 

C.  126 247* 

Elizabeth  City  Academy  v.  Lind- 
say, 6  Ired.  L.  476,  45 

Am.  Dec.  500 487^ 

Elizabethport  &  N.  Y.  Ferry  Co. 
v.     United    States,     5 

Blatchf.  198 481^ 

Elizabethtown  &  P.    R.   Co.   ■». 

Thompson,  79  Ky.  52.     94' 
Elizabethtown,  L.  &  B.  S.  R.  Co. 
«.    Combs,    10     Bush, 

382 - 82'  2 

Elliot    V.    Fitchburg    R.    Co.  10 
Cush.  191.57Am.  Dec. 
85-... 3553,  357%  409',  441^5 
V.    Fitchburg    R.    Co.    10 

Cush.  193 442«,  455^ 

».   Fitchburg    R.    Co.    10 

Cush.  194 443' 

Elliotts.  Fair  Haven, 32  Conn.  579 

93*,  2482 

®.  Philadelphia,  75  Pa.  347  335^ 
1).  Pray,  10  Allen,  378,  87 

Am.  Dec.  653 19^,  566^ 

v.  Rhett,  5   Rich.  L.    405, 

421 157» 

V.  Rhett,  5    Rich.   L.  405, 

418,  419 1872 

V.  Rhett,  5  Rich.  L.  405,  37 
Am.    Dec.     750,    and 

note,  751-768_-. 166' 

«.  Stewart,   15  Or.  259....    383^ 
Ellis  V.   American  Academy  of 

Music,  120  Pa.  608.743,  247^ 

V.  Carey,  30  Ala.  725 

....403^  405*,  406' 


Ellis    «.  Duncan,  21   Barb.    230, 
affd.  26  How.  Pr.  601. 

2802,  300^ 

V.  Hilton,  78  Mich.  150,  6 

L.  R.  A.  454 636' 

V.  Iowa  City,  29  Iowa,  229 

2902,  305^  3272 

v.  Loftus  Iron   Co.  L.  R. 
10  C.  P.  10,  11  Moak, 

Eng.  Rep.  214 

5852,  5911^  5937 

Ellsworth   V.  Southern   Minn.  R. 

E.  Co.  31  Minn.  543.    182' 
Elwell  V.  Crowther,  31  Beav.  103  270* 
Ely  V.  Campbell,  59  How.  Pr.  333     99' 
1).  Rochester,  26  Barb.  133- 

136 315 

«.  Rochester,  26  Barb.  133, 

137 307* 

Emans  v.  Turnbull,  2  Johns.  322  396' 
Embrey  v.    Owen,  6  Exch,  353 

..288*,  409',  4412,  4433 

V.  Owen,  6  Exch.  370 2872 

Emerson  v.  Taylor,  9  Me.  44 360' 

«.  Wiley,  10  Pick.  310 

-. 571',  5803 

Emery  ■».  Lowell,  104  Mass.  13.. 

.3292,  340.  349* 

V.  Lowell,  104  Mass.  13.  16  350' 
v.  Lowell.  104  Mass.  13, 16, 

17 ...-    3493 

1).  Lowell,  104  Mass.  13,  17 

-- 347*.  3495 

«.  Lowell,   104  Mass.  15.. 

..329%  3433 

Emporia  v.  Schmidling,  33  Kan. 

485 365*,  656' 

V.  Soden,  25  Kan.  588,  37 
Am.     Rep.    265,    and 

note 454%  456'  ^4 

Enfield  Toll  Bridge  Co.  v.  Hart- 
ford &  N.  H.  R.    Co. 

17  Conn.  40,  54 

89',  483',  484' 

Engel  V.  Smith  (Mich.)  46  N.  W. 

Rep.  21 22' 2,  128* 

Eno  V.  Del  Vecchio,  4  Duer,  53 

208'.  213 

V.  Del  Vecchio,  4  Duer,  61   209^ 
V.  Del  Vecchio,  4  Duer,  53, 

6  Duer,  17... 213' 

V.  Del  Vecchio,  6  Duer,  17  233* 
Enos  V.  Hamilton,  27  Wis.  256 

l26^  4753 

Ensminger  v.  People,  47  111.  384.  3892 
Erb  1).  Brown,  69  Pa.  216.... 5712,  5304 
Erd  V.  Chicago  &  N.  W.  R.  Co. 

41  Wis.  65 6472,  6652 

V.  Chicago  &  N.  W.  R.  Co. 

41  Wis.  66 646« 


TABLE    OF   CASES. 


XXXIX 


Erie  v.  Caulkins,  So  Pa.  247 323^ 

V.  Magill,  101  Pa.  6l6.124^  129^ 
V.  Schwiagle,  22  Pa.  888..    311^ 
Erie  R.  Co.   v.   Decker,  78  Pa. 

295 669^ 

Ernst  V.  Hudson  River  R.  Co.  24 

How.  Pr.  97.. 362^ 

Escanaba  &  L.  M.  Transp.  Co.  v. 
Chicago,  107  U.  S.  678, 

27  L.  ed.  442 372" 

•0.  Chicago,  107  U.  S.  682. 

27  L.  ed.  444 370^ 

Esling  V.  Williams,  10  Pa.  126. .   237^ 
Esson  V.  McMaster,  1  Kerr  (N. 

B.)501. 3773,  405' ,  416 

Estes  V.  China,  56  Me.  407 

321'^  329^  3525 

V.  China,  56  Me.  410 334^ 

Eubanks  v.  Pence,  5  Litt.  (Kv.) 

338- ....531',  549« 

Eufaula  v.  Simmons,  86  Ala.  515  434- 

Eustace  v.  Jahns,  38  Cal.  3 114' 

Evans  v.  Dana,  7  R.  I.  306 236« 

v.  Jayne.  23  Pa.  34...2072,  233=» 
V.  McDermott,  49  N.  J.  L. 

163,  4  Cent.  Rep.  559.  586" 
V.  Merriweather,  4  111.  492  442-* 
V.  Wilmington    &   W.   R. 

Co.  96  N.  C.  45 154- 

Evansich  v.  Gulf,  C.  &  S.  F.  R. 

Co.  57  Tex.  126 29> 

Evanston  v.  Gunn,  99  U.  S.  660, 

25  L.  ed.  306 342' 

Evansville  v.  Decker,  84  Ind.  325, 
43  Am.  Rep.  86..290^ 
312',    321',    323',  325-.   326^ 

V.  Page,  23  Ind.  525 8P 

Evansville  &  T.  H.  R.  Co.  v.  Car- 
vener,  113  Ind.  51,  12 

West.  Rep.  204. 72'' 

V.  Griffin,  100  Ind.  221....  23'  ■* 
V.  Griffin,  100  Ind.  221-225     26'^ 
Everett  v.   Edwards,  149    Mass. 

588,  5L.  R.  A.  110...    2143 
V.  Hydraulic  Flume  Tun- 
nel Co.  23  Cal.    225.. 
..256«,  271S  272',  432',  440' 
Everson  v.  Syracuse,  100  N.  Y. 

577,  1  Cent.  Rep.  756.   337^ 
Ewart    V.    Cochrane,    4    Macq. 

123 IW 

V.  Cochrane,  7  Jur.  N.  S. 

925 186^  24P 

Ewell  v.   Greenwood,    26   Iowa, 

377 79',  468S  473 

Exchange  Fire  Ins.  Co.  v.  Dela- 
ware    Canal     Co.     10 

Bosw.  180 566^  567^4 

Explorer,    The,    20    Fed.    Rep. 

135 370^ 


Fagan  v.  Armistead,  11  Ired.  L. 

433.. 5142 

Fahn  v.  Reichart,  8  Wis.  255 

135^  6442,  6451 

Fair  v.  Philadelphia,  88  Pa.  209, 

32  Am.  Rep.  455 330* 

Fairbanks  v.  Kerr,  70  Pa.  86.. 70%  142'^ 

V.  Kerr,  70  Pa.  89... 365 

Fairchild    v.    Bentley,   30  Barb. 

147- 617' 

Fallon  V.  O'Brien,  12  R.  I.  518.. 

..612',  6I32 

Fall  River  Iron   Works   Co.   v. 

Old  Colony  &  F.  R.  R. 

Co.  5  Allen,  224... 75^  474^ 
Falmouth  v.  George,  5  Ring.  286  497" 
V.  Penrose,  9  Dowl.  &  Ry. 

452.. 497" 

Fanjoy«.  Scales,  29  Cal.  243 

..21-,  625,  5832 

Fanning  v.  Osborne,   102  N.  Y. 

441,  3  Cent.  Rep.  455. 

87-,  90-,  91-9 

Fant  V.  Lyman  (Mont.)  22  Pac. 

Rep.  120 596' 

Farnsworth  v.    Taylor,   9  Gray, 

106 1843 

Farnum    v.     Blackstone     Canal 

Corp.  1  Sumn.  46 476-' 

v.  Concord,  2  N.  H.  392...   3393 

Farrand  v.  Marshall,  21  Barb.  409     38' 

Farrar  v.  Cooper,  34  Me.  394.571',  580" 

V.  Cooper,  34  Me.  394,  400.    579^ 

Farrell  v.  London,  12  U.  C.  Q.  B. 

343. 327',  36P 

V.  Richards,  30  N.  J.  Eq. 

511... .44236 

Farrelly  v.  Cincinnati,  2  Disney 

(Ohio)  516 

80-,  126",  4713,  4752 

Farrington  v.  Anson,  77  Me.  406.   335" 
Fash  V.    Third   Ave.    R.    Co.    1 

Daly,  148 252'2 

V.    Third    Ave.    R.   Co.    1 

Daly,  150 252" 

Passion  v.  Landrey  (Ind.)  24  N. 

E.  Rep.  96 815,  34' 

Faulkner  v.  Aurora,  85  Ind.  130.   3103 

Fay?).  Prentice,  1  C.  B.  829 131" 

V.  Salem  &  D.  Aqueduct 

Co.  Ill  Mass.  27 453^ 

Federal  St.  &  P.  V.  R.    Co.  v. 

Gibson,  96  Pa.  83....    139' 
Feital  v.  Middlesex  R.  Co.   109 

Mass.  398. 155" 

Felger  v.  Robinson,  3  Or.  455 405' 

V.  Robinson,  3  Or.  458...    5503 
Fellows  V.  Sackett,  15  Barb.  96..  131" 


xl 


TABLE   OF    CASES. 


Felton  V.  Deall,  22  Vt.  170 486« 

Fennings    v.  Lord    Grenville,    1 

Taunt.  248... 497^ 

Fent  V.  Toledo,  P.  &  W.  R.  Co. 

59    111.    349,    14    Am. 

Rep.  13  ....652,  652',  654'  = 

Fenton  «.    Montgomery,  19  Mo. 

App.  156, 1  West.  Rep. 

416 5953 

Ferguson   v.    Davis    County,    57 

Iowa,  601 316' 

«.  Firnienich  Mfg.  Co.  77 

Iowa,  576. 8' 

V.  Hubbeli,  97  N.  Y.  507.    645' 
«.  Landram,  5  Bush,  230..   485^ 
Fernald  c.  Knox  Woolen  Co.  82 

Me.  48,  7  L.  R.  A.  459  547^^ 
Fernandes  v.  Sacramento  City  R. 

Co.  52  Cal.  45 364= 

Fero  V.  Buffalo  &  S.  L.  R.  Co.  22 

N.Y.  209 648^  668=,  669^ 

«.  Buffalo  &  S.  L.  R.  Co. 

22  N.  Y.  215. 665' 

Ferrea  «.  Knipe,  28  Cal.  343 443^ 

Ferreubach  v.  Turner.  86  Mo.  416     96^ 
Ferris  «.  Union  Ferry  Co.  36  N. 

Y.  312 489* 

V.  Wellborn,  64  Miss.  29. 

.3554,  358' 

Fetters  v.  Humphreys,  18  N.  J. 

Eq.  260 17r,  174«,  235« 

V.  Humphreys,  18  N.  J.  Eq. 

260,  19  N.  J.  Eq.  471.   241^ 
V.  Humphreys,  19  N.  J.  Eq. 

471 169^ 

Fettretch  v.  Leamy,  9  Bosw.  535.   204^ 

Ficken  «.  Jones,  28  Cal.  618 607' 

Field  V.  Apple  River  Log  Driving 

Co.  67  Wis.  569 556-' 

V.  Coleman,  5  Cush.  267..   602^ 

V.  -Jacobs,  12  Met.  118 603* 

V.  Leiter,    118    111.    17,    6 

West.  Rep.  54 

..204',  210',  213,  214* 

V.  New  York  Cent.  R.  Co. 

32N.Y.  339. 64P,  652',  664' 
V.  West   Orange,  36  N.  J. 
Eq.  120,  29  Alb.  L.  J. 

397 320^,  325^326= 

V.  West  Orange,  39  N.  J. 

Eq.  60. 290' 

V.  West  Orange,  46   N.  J. 

Eq.  183 3045,  305*,  306^ 

Filliter  v.  Phippard,  11  Q.  B.  347 

641,  64P,  644^  645^ 

Fillmore  v.  Jennings,  78  Cal.  634  398' 
Fineaux  v.  Hovenden,  Cro.  Eliz. 

664 ..126*,  4752 

Fink  V.  Missouri  Furnace  Co.  10 

Mo.  App.  69 123',  597-2 


Finley  v.  Langston,  12  Mo.  120..   644^ 
Fire  Department  v.  Williamson, 

16  Abb.  Pr.  195 663* 

First  Parish  in  Sutton  v.  Cole,  3 

Pick.  232,240 3412 

Firth  V.  Bowling  Iron  Co.  L.  R, 

3C.  P.  Div.  254 59T 

Fish  V.  Dodge,  4  Denio,  311 

49s,  5P,  522,  5g4^  581 

V.  Dodge,  4  Denio,  313 IP 

V.  Skut,  21  Barb.  333 626* 

Fisher  v.  Boston,  104  Mass.  87...   337' 

V.  Clark,  41  Barb.   329 632^ 

V.  Clisbee,  12  111.  344 488*^ 

V.  Prowse,  2  Best  «&  S.  770 

69^  121' 

ij.Thirkell,  21  Mich.  20 110' 

Fiske  v.  Wetmore,  15  R.  I.  366,  5 

New  Eng.  Rep.  93...   572^^ 
Fitch  V.  New  Haven,  N.  L.  &  1. 

R.  Co.  30  Conn.  39..   479* 
V.  Pacific  R.   Co.   45  Mo. 

322. 664' 

V.  Rawling,  2  H.  Bl.  893..    1895- 
Fitchburg  R.    Co.    v.  Frost,  147 
Mass.  118,  6  New  Eng. 

Rep.  374 239*,  263* 

Fitzell  V.  Leaky,  72  Cal.  477.243*,  205* 
Fitzgerald  v.  Dobson,  78  Me.  559, 

3  New  Eng.  Rep.  394.   620* 
Fitzwalter's  Case,  1  Mod.  105,  108 

498* '» 

Flagg  V.  Worcester,  13  Gray,  601 

147^  296«,  2993, 

3022,  3036^   3051  2^  349*,  350 
V.  Worcester,  13  Gray,  602  290' 
Flanagan  v.  Philadelphia,  42  Pa. 

219..374^  376"  6,  378*,  443* 
V.  Philadelphia,  42  Pa.  219, 

228. 540' 

Flansbury  v.  Basin,  3  111.  App. 

531 586«,  eoe*' 

Flattes  V.  Chicago,  R.  I.  &  P.  R. 

Co.  35  Iowa,  191 147' 

Fleet  V.  Hageman,  14  Wend.  42. 

4952,  537' 

Fleming  v.  Beck,  48  Pa.  309.  313   106^ 

V.  Davis,  37  Tex.  173 443« 

V.  Orr,  2  Macq.  H.  L.  Cas. 

14 617* 

V.  Orr,  29  Eng.  L.  &  Eq.  16   586* 
Fletcher  v.  Auburn  &  S.  R.  Co. 

25  Wend.  462 90'^ 

V.  Phelps,  28  Vt.  257,  262. 

3892,  5121 

V.  Rylands,  L.  R.  1  Exch. 

265 551,  436,  586,  589* 

V.  Rylands,  L.  R.   1  Exch. 

280 272: 

».  Rylands,  L.R.I  Exch.  286  145» 


TABLE   OF   CASES. 


'Fletcher  v.  Smith,  L.  R.  2  App. 

Cas.  781,L.  R.  7Exch. 

305.. 2708 

Flood  V.  Doodley,  15  N.Y.Week. 

Dig.  47 24' 

Flora  V.  Carbeau.  38  K  Y.  111..  582' 
Florida  Southern  R.  Co.  v.  Brown, 

23  Fla.  104_ 90\  91'o 

Flower  «.  Pennsylvania  R.   Co. 

69  Pa.  210.. 25^ 

Flynn  v.  Canton   Co.  40  Md.  312 

75^  103',  114',  4753 

V.  San  Francisco  &  S.  J.  R. 

Co.  40  Cal.  14 

.654',  664',  6652 

Fobes  V.  Rome,  W.  &  O.  R.  Co. 

121  N.  Y.  505,  8  L.  R. 

A.  453 93',  180« 

Fogg  V.  Nevada  C.  O.  R.  Co.  20 

Mev.  429. 78',  81«,  82' 

Foley  V.  Wyeth,  2  Allen,  131.... 

38',  197,  2005 

Foot  V.  Bronson,  4  Lans.  47 299' 

Ford  V.  Chicago  &  N.  R.  Co.  14 

Wis.  616 90' 

V.  Lacy,  7  Hurl.  &  N.  151.  399'" 

V.  Lukens,  81  Ga.  633 462'* 

V.  Tatrgart,  4  Tex.  492 628' 

Fore  V.  Wiley,  L.  R.   23   Q.   B. 

Div.  203,  40  Alb.  L.  J. 

270 637'' 

Forker  v.  Sandy  Lake,  130  Pa. 

123. : 1302 

Forney  v.  Goldsmacher,  75  Mo. 

113. 106^ 

Fort  Plain  Bridge  Co.  v.  Smith, 

30  N.  Y.  44 

...75^  389^  463^  4753 

V.  Smith,  SON.  Y.  62 79' 

Fort  Smith  v.  Dorlson  (Ark.)  4  L. 

R.  A.  252.. 601' 

Fort  Wayne  v.  Coombs,  107  Ind. 
75,  5  West.  Rep.  229.. 

290^ 

321',  325',  328,  329^  ^  33P 

Fort  Worth  Street  R.  Co.  v.  Rose- 
dale  Street  R.  Co.  68 
Tex.  169 89* 

Foster?).  Browning,  4  R.  I.  47..    181'' 
V.   Essex   Bank,    17  Mass. 

479 4904 

V.  Searsport  Spool  &  Block 
Co.  79  Me.  508,  5  New 

Eng.  Rep.  236 553 

V.  Wright,  L.  R.  4  C.   P. 

Div.  438... 399'o 

Fow  V.  Roberts,  108  Pa.  489... 49',  61 

Fowle  V.  Alexandria,  28  U.  S.  3 

Pet.  397,  7  L.  ed.  719.   337' 

Fowler  t).  Mott,  19  Barb.  204 480^ 


..    167^ 
203 


2913 


310' 


Fowler  v.  Saks(D.  C.)  7L.  R.  A. 

649 37',  393,  23P 

Fox  V.  Union  Sugar  Refinery,  109 

Mass.  292. 161^,  184* 

V.  Union   Sugar  Ref.     Co. 

109  Mass.  292,  297....    255' 
V.  Young.  22  Mo.  App.  386  6392- 
Fraler  v.  Sears  Union  Water  Co. 

12  Cal.  555 256« 

Frammell  v.  Little,  16  Ind.  251..    62P 
Francies'  Appeal,  96  Pa.  200.. 
Francis  v.  Cockrell,  L.  R.  5  Q.  B. 

501 

V.  Schoellkopf,  53   N.  Y. 

152 79',  292«,  475' 

V.   Schoellkopf,  53  N.   Y. 

154.... 

Franke  v.  Paducah  Water  Supply 

Co.  (Ky.)  4  L.  R.  A. 

265 

Franklin  v.  Fisk,  13  Allen,  211.. 

120,  1473, 

3022,    3036^    3321,  3493^  359 

«.  Pollard  Mill  Co.  88  Ala. 

318__ 4565- 

Franklin  Wharf  Co.  v.  Portland, 
67Me.  46,  24Am.  Rep. 

1 292^  321^  3275,  352^ 

Franz  v.  Sioux  City  &  P.  R.  Co. 

55  Iowa,  107 93' 

Eraser  v.  Tupper,  29  Vt.409.135^  645' 

Frazer  ■».  Kimler,  2  Hun,  514 

6O42,  607» 

Frazier  v.   Brown,   12   Ohio   St. 

294 12',  280',  28P,  425*^ 

V.  Brown,  12  Ohio  St.  294, 
312,  3  Am.  L.  Reg.  N. 

S.  240,  ?iote 287' 

«.  Brown,  12  Ohio  St.  312.   288-' 
Freary  v.  Cooke,  14  Mass.  488.. 

..498'\  50P 

Freeman  v.  State,  6  Port.  372 70^ 

Freemantle  v.  London  &  N.  W. 
R.   Co.    2   Fost.  &  F. 

337 _ 

Freer  v.  Cameron,  4  Rich.  L.  228 

Fremont,  E.  &  M.  V.  R.  Co.  v. 

Marley,  25  Neb.  138.. 

290',  300^  304^ 

French  v.  Braiutree  Mfg.  Co.  23 

Pick. 216.... 532\  571',  578^ 
V.  Carhart,  1  N.  Y.  96....  172« 
V.  Cresswell,  13  Or.  418... 

591'.  592-^  '» 

V.  Marstin,  24  N.  H.  440..    238* 

V.  Quincy,  3  Allen,  13 345-* 

Fresno  Canal  ct  Irrig.  Co.  v.  Dun- 
bar, 80  Cal.  530 450-^3 

Fretz  V.  Bull.  53  U.  S.  12  How. 

466,  13  L.  ed.  1068...    371* 


644^ 
19* 


ilii 


TABLE   OF   CASES. 


Freudenstein   v.    Heine,    6    Mo. 

App.  287 3031 

Frink  v.  Lawrence,  20  Conn.  117  477^ 
V.  Lawrence,  20  Conn.  120     77" 
Fripp  V.  Hasell,  1  Strobh.  L.  173  543' 
Pritschie  v.  Fritschie  (Wis.)  45  N. 

W.  Rep.  1088 160= 

Frost  V.  Eastern  R.   Co.    64   N. 

H.  220,  4  New   Eng. 

Rep.  527 30 

v.  Plumb,  40  Conn.  111...  639^ 
Frostburg  v.  Hitchins,  70  Md.  56  328'' 
Frye  v.  Moor,  53  Me.  583 

273«,  285,  4403 

Fryer  1;.  Warne,  29  Wis.  511 300=* 

Fuchs  V.  Schmidt,  8  Daly,  317.-    123^ 
Fuller  V.  Chicopee  Mfg.  Co.  16 

Gray,  46 271 

v.  Melrose,  1  Allen,  166...   458^ 
V.  iSwan  River  Placer  Min. 

Co.  12  Colo.  12..289^  448' 
Fulmer  v.  Williams,  122  Pa.  191, 

1  L.  R.  A.  603 

370^  404^  433' 

Fulton  V.  Short  Route  R.  Trans. 

Co.  85   Ky.  640. 93« 

Furguson  v.  Davis  Co.  57  Iowa, 

601 332' 

Furlong  v.  Carroll,  7  Ont.  App. 

145 2W 


G. 


Gagg  V.  Vetter.  41  Ind.  228 644 

GaUigan  v.  Metacomet  Mfg.  Co. 

143  Mass.  527,  3  New 

Eng.  Rep.  705. 23* 

Galveston   ■y.    Menard,   23    Tex. 

349.. 378«,  492''' 

Galveston,  H.  &  S.  A.  R.  Co.  v. 

Home,  69  Tex.  643...    648* 
Galveston  Oil  Co.  v.  Morton,  70 

Tex.  400 26^ 

•Galvin  v.  New  York,  112  N.  Y. 

223. 73'o 

Gammell    v.    Woods   &    Forests 

Comrs.  3  Macq.  H.  L. 

Cas.  419 496* 

Gandy  ».  Jubber,  5  Best  &  S.  78.     65 
V.  Jubber,  5  Best  &  S.  78, 

485,  10  Jur.  N.  S.  652     46' 
V.  Jubber,  5  Best  «&  S.  87. 

..49,  49^  50 

Gannon  v.  Hargadon,  10  Allen, 

106,  109. 1473, 

295',  296*  «,  302^  3493,  gQp 
■Gardiner  v.  Tisdale,  2  Wis.  153.. 

1883,  560' 


Gardner  v.  Heartt.  2  Barb.  165..  39» 
V.  Newburgh,  2  Johns.  Ch. 
162,  1  N.  Y.  Ch.  L. 
ed.  382... 8',  355^,  452^  454^ 
V.  Newburgh,  2  Johns.  Ch. 
162,  1  N.  Y.  Ch.  L.  ed. 
332,  7  Am.  Dec.  526, 

note,  .532 425* 

0.  Newburgh,  2  .Johns.  Ch. 
162,  1  N.  Y.  Ch.  L. 
ed.  332,  7  Am.  Dec. 
526,  and  note,  531-534  442' 
v.  Newburgh,  2  Johns.  Ch. 
1.62,  1  N.  Y.  Ch.  L. 
ed.   333,  7  Am.  Dec. 

526- 477' 

v.  Newburgh,  2  Johns.  Ch. 
162,  1  N.  Y.  Ch.  L. 
ed.   332,  7  Am.    Dec. 

532. 443« 

Garitee  v.  Baltimore,  53  Md.  422, 

437 -.126*,  4752 

Garland  v.  Furber,  47  N.  H.  301   245'2 

V.  Towne,  55  N.  H.  55 27- 

V.  Towne,  55  N.  H.  56 271- 

V.  Towne,  55  N.  H.  57 272 

Garrett  v.   Chicago  &  N.  W.  R. 

Co.  36  Iowa,  121 669* 

V.  Freeman,  5  Jones,  L.  78 

645^  6472 

«.  Jackson,  20  Pa.  331 428* 

V.  Janes,    65    Md.    260,    7 

Cent.  Rep.  403 9' 

V.  State,  49  N.  J.  L.  94,  5 

Cent.  Rep.  337 ll^^ 

Garretzen  v.  Duenckel,  50  Mo.  104  233^ 

Garrison  v.  Rudd,  19  111.  558 158^ 

Garritt  v.  Sharp,  3  Ad.  &  El.  335  255' 
Garwood  v.  New  York  Cent.  & 
H.  R.  R.  Co.  83  N.  Y. 
400,  38  Am.  Rep.  453 
..425*,  4415,  451*,  456*,  457 
V.  New  York  Cent.  &  11. 
R.  R.   Co.  83  N.    Y. 
404,  38  Am.  Rep.  452.   409' 
T.  New  York  Cent.  &  H. 

R.  R.Co.  116  N.Y.  649  459^ 
Gaskill  V.  Dudley,  6  Met.  546. ...  339' 
Gaston  v.  Mace,  "33  W.  Va.  14,  5 

L.  R.  A.  393.- 

374',  376-, 

389-,  405',  412',  417'^  ^  550^ 
Gates  V.  Blincoe,  2  Dana,  158  ...   468' 
V.  Southwestern   Brush  E. 
L.   &    P.  Co.  40    La. 

Ann.  467 156' 

Gateward's  Case,  6  Coke,  59  i...    580 
Gautret  v.  Egerton,  L.  R.  2  C.  P. 
274,  36  L.  J.  N.  8.  C. 
P.  191 24* 


TABLE    OF    CASES. 


xliii 


<3autret  v.  Egertor.,  L.  R.  3  C.  P. 
371,  3G  L.  J.  N.  S.  C. 

P.  191...    23',  150^ 

Gavin  v.  Chicago,  97  111.  66 23^ 

Gavit  V.  Chambers,  3  Ohio,  496..    389- 

Gay,  Ex  parte,  5  Mass.  419 573* 

V.  Boston  &  A.  K.  Co.  141 
]\[ass.  407,  2  New  Eug. 

Kep.  240 - 234^ 

Gayetty  v.  Belhuue,  14  Mass.  49, 

55 427'^  575'2 

«.  Bethune,  14  Mass.  51...  169'' 
V.  Bethune,  14  Mass.  51,  53 

427^  573-^ 

Gaynor  v.  Old  Colony  &  N.  R. 

Co.  100  Mass.  20S_...    362* 
Gehman  v.  Erdmau,  15  W.  N.  C. 

278.-- 425^ 

Genesee  Chief,  The,  v.  Fltzhugh, 
53  U.  S.  12   How.  443, 
13  L.  ed.  1058 -.370,  371^ « ' 
-Gent  V.  Abbott,  8  Taunt.  187.-..    498^ 
Gentleman  v.  Soule.  32  III.  271..   262* 

V.  Soule,  32  111.  272 163^ 

George  v.  Fisk,  32  N.  H.  32 261'^ 

Georgetown  v.  Alexandria  Canal 
Co.    37  U.  S.  12  Pet. 
91,  9  L.  ed.  1012 -.4G8-,  477^ 
Georgetown  St.  Comrs.  v.  Taylor, 

2Bay{S.  C.)  282  ..75-»,  475= 
Georgia  Pac.  R.  Co.  v.  Propst,  85 

Ala    203  145'- 

Gerber®.  GrabeL  16'fli'223"-"   166' 
Gerenger  v.  Summers,  2  Ired.  L. 

229 262* 

Gerhard  v.  Bates,  2  El.  &  Bl.  490  139=* 
V.   Seekonk  River  Bridge 
Comrs.  15  R.  I.  334,  2 
New  Eng.  Rep.  619  ..   379' 
Gerrard  v.  Cooke,  2  Bos.  &  P.  N. 

R.  109- 2433,  265^ 

•Gerrish  v.  Brown,  51  Me.  256 

404^  412' 

T.  Brown,  51  Me.  256,  263.  560' 
V.  Clough,  48  N.  H.  9-396^  461^ 
V.  tjhatiuck,  132  Mass.  235 

--246,  246',  254,  205^  577'' * 
-Gerty  v.  Haley,  29  \V.  Va.  98  ...   363-^ 

Getty  w.  Hamlin,  46  Hun,  1 465' 

V.  Hudson  River  R.  Co.  21 

Barb.  617 374^ 

•Gibbons  v.    Ogden,   22  U     S.    9 
Wiieat.  1,  214,  6  L.  ed. 

23  74.- -...   481* 

V.  Wi-sconsin  Valley  R.  Co. 

66  Wis.  161 647'^ 

Gibbs  V.  Liverpool  Docks,  3  Hurl. 

&N.  164  .- 566- 

V.  Liverpool  Docks,  3  Hurl. 

&  N.  164,  176 568V 


Gibbs  V.  Williams,  25  Kan.  214, 

37  Am.  Rep.  241  -148',  295' 
Gibson  v.  Chouteau,  80  U.  S.   13 

Wall.  92,  20  L.  ed.  534  444^ 
V.  Durham,  3  Rich.  L  85.   235'' 

V.  Fischer,  68  Iowa,  29 545' 

V.  Holden,    115  111.   199,   1 

West.  Rep.  677 

204^  205',  220-  '*,  221«,  224* 
«.  Johnson,  4  111.  App.  288  342' 
V.  Preston.   L.   R.  5  Q   B. 

218,  222 338' 

GiflEord  v.  Babies  Hospital  (Sup. 

Ct.)  17  N.  Y.  S.  R.  886  335« 
V.  New  Jersey  R.  ifcTransp. 

Co.  10  N.  J.  Eq.  177.  468'^ 
V.  Yarborough,  5  Bing.  162  397' 
V.  Yarborough,  5  Bing.  163   400 

Gilbert  v.  Drew,  10  Pa.  219 220' 

V.  Greeley,  S.   L.  &  P.  R. 

Co.  13  Colo.  501 126' 

V.  Mickle,  4  Sandf.  Ch.  357, 

7  N.  Y.  Ch.  L.  ed.  1132  77^ 
V.  Morris  Canal  &  Bkg.  Co. 

8N.  J.  Eq.  495. -..80',  476' 

V.  Nagle,  118  Mass.  278 

- 19',  568' 

Gillespie  v.   McGowan,    100  Pa. 

144 23',     26'^ 

Gillette.  Johnson,  30  Conn.  180. 

440•^  443" 

®.    Western     R.    Corp.     8 

Allen,  560 637' 

Gillham  i).  Madison   Co.  R.  Co. 

49  111.  484.- 295' 

Gilliland  v.  Chicago  &  A.  R.  Co. 

19  Mo.    App.    411,    2 

West.  Rep.  438 

AV^    6289 

Gillis  V.  Nelson,  16  La.  Ann.  275 

295',  300^ 

■».  Pennsylvania  R.  Co.  59 

Pa.  129 25' 

Gillison  v.  Charleston,  16  W.  Va. 

282,  37  Am.  Rep.  763. 

----290',  3045 

Gillson  V.  North  Gray  R.  Co.  33 

U.  C.  Q.  B.  129 645' 

Gilman  v.  Laconia,  55  N.  H.  130, 

20  Am.  Rep.  175 293* 

V.  Philadelphia,  70  U.  S.  3 

Wall.  713,  18  L.  ed.  96  464' 
Gilmer  v.  Montgomery,  26  Ala. 

665 3292 

Gilmore».  Driscoll,  122 Mass.  199 

38',  180^  190',  198,  201 

V.  Holt,  4  Pick.  258  --600\  603-* 

V.  Utica,  55  Hun,  514 SS^ 

Giraud  v.  Hughes,  1  Gill  &  J.  249 

393-,  397'.  399'<' 


xliv 


TABLE    OF    CASES. 


Gladfelter«.  Walker,  40  Md.  1..  291^ 
Glsessner      v.      Anheuser-Busch 

Brew.    Asso.   100   Mo. 

508 725,  871,  958^  251'' 

Glave  V.  Harding,  3  Hurl,  &  N. 

937 5748 

Gleason  v.  Amsdell,  9  Daly,  393.     27^ 

Glenn  v.  Canby,  24  :\[(1.  127 221« 

V.  Kays,  1  111.  App.  479-..  543' 
Gloucester  v.  I3each,  3  Pick.  60, 

note .427'" 

Glover  v.  Mersman,  4  Mo.  App. 

90.- -.    1045 

V.  Powell,  10  N.  J.  Eq.  211  3748 
Gluck  V.  Rideewood  Ice  Co.  (Sup. 

Ct.)  31  N.  Y.  S.  R  99 

390^  565-»,  568' 

Goddard,  Petitioner,  16  Pick.  504  103' 
Godeau  ».  Blood,  52  Vt.  251 

605'  6,  607',  620^ 

V.   Blood,   52  Vt.    251,  36 

Am.  Rep.  751 619^ 

Godfrey  v.  Alton.  12  111.  29 377^ 

».  Alton,  12  111.  30 560' 

V.  Alton,  12  111.  37 397^ 

Godley  v.  Hagerty,  20  Pa.  387,  59 

Am.  Dec.  735,  note.^.  ig** 
V.  Hagerty,  20  Pa.  387,  affd. 

in  Carson  v.  Godley,  26 

Pa.  Ill 44',  51,  51',  61^ 

Goff  «.    Brainerd.  58  Vt.  468,  2 

New  Eng.  Rep.  612  ..   558= 

Goiue  V.  Allen.  4  Bush,  6JS 487^ 

Gold  Hunter,  The,  Biatchf.  &  H. 

300 - 371* 

Goldschmid  v.  Starring,  5  Mack- 

ev,  582,  8  Cent.  Rep. 

716 2063,  207' 

Goldsmid  'P.Tunbridge  Wells  Imp. 

Comvs.    L.    R.    1    Ch. 

App.  349  -- 288',  291* 

•0.   Tunbridge  Wells  Imp. 

Comrs.  L.    R.    1    Eq. 

161,  L.  R.  1  Ch.  App. 

349 - 291' 

Goldsmiths.  Elsas,  53  Ga.  186.. 

2953,  300^ 

Good  V.   Galveston,  H.  &   S.  A. 

R.  Co.  (Tex.)  4  L.  R. 

A.801 639' 

V.    Galveston,  H.  &   S.  A. 

R.  Co.  (Tex.)  11  S.  W. 

Rep.  854 - 639* 

Goodale  v.  Tuttle,  29  N.  Y.  459. 

..280-,  296^  2993,  300S  361^ 
Goodall  V.  Godfrey,  53  Vt.  219.. 

166',  171' 

Goodman  «.  Gay,   15  Pa.  194....    611' 

V.  Tavlor,  5  Car.  &  P.  410.   611« 

Goodrich  «."Burbank,  97  Mass.  22   28S* 


Goodrich  •».  Lincoln,  93  111.  359.   209^ 

V.  Lincon,  93  111.  360 222'^ 

Goodsell  V.  Lawson,  42  Md.  348.    379' 
V.  Taylor,  41  Minn.  207,  4 

L.  R.  A.  673 145^  146^- 

Goodson  V.  Richardson,  L.    R.  9 

Ch.  221 98' 

Goodlitle  v.  Alker,  1  Burr.  133. .    264 
V.  Kibbe,  50  U.  S.  9  How. 

471,  13  L.  ed.  220.3719,  378''^ 
Goodwill  V.  Bossier  Parish  Police 

Jury,  38  La.  Ann.  752  403* 
Goodwyn  v.  Cheveley,  4  Hurl.  & 

N.  631 607'' 

Goodyear  0.  Cary,  4  Biatchf.  271     88' 
Gordon  v.  Baxter,  74  N.  C.  470.. 

75*,  475^ 

V.  Richmond,  83  Va.  436.. 

100',  115'- 

Gorham  v.  Cooperstown,  59  X.  Y. 

660 342',  343* 

V.  Gross,  125  Mass.  232 

9^  154,  233*,  371' 

Gorman  v.  Pacific  R.  Co.  26  Mo. 

445 595^ 

Gormley  v.  Sanford,  52  111.  159.. 

....2953,  298=,  302' 

Gosport   li.  Evans,  112   Ind.  133, 
11  West.  Rep.  118... 

1248,  126^  128«,  139=6 

Gough  V.  Bell,  23  N.  J.  L.  441.. 

3786,  385» 

Gould  v.  Boston,  120  Mass.  300.. 

340*,  348*- 

V.  Boston    Duck    Co.     13 

Gray,  442 424^  4436- 

V.  Eastern  R.  Co.  142  Mass. 
85,  2  New  Eng.  Rep. 

595 394* 

«.  Hudson  River  R.  Co.  6 

N.  Y.  522 359* 

v.  James,  6  Cow.  369 499* 

V.  Slater   Woolen  Co.  147 
^Mass.  315,  6  New  Eng. 

Rep.    599 136* 

V.  Topeka,  32  Kan.    485.. 

316',  332' 

Gourdier  v.   Cormack,  3  E.    D. 

Smith.  200 39* 

V.  Cormack,  2  E.  D.  Smith, 

254 .-    114' 

Gouverneur  v.  National  Ice  Co. 

57  Hun,  474.208*,  358*.  394^ 
Guenther  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.  95  Mo.  286,  14 

West.  Rep.  735.. 135' 

Graham  v.  Payne,  122  Ind.  403.. 

...609',  610' 

V.  Pennsylvania  R.  Co.  39 

Fed.  Rep.  596 489* 


TABLE    OF    CASES. 


xlv 


<3ramlicli  v.  Wurst,  86  Pa.  74,  27 

Am.  Kep.  684 26«.  32' 

■Grand    Junction    Canal    Co.    v. 
Shugar,  L.   R.   6  Ch. 

483 454\  456'  » 

•Grand  Rapids    &  I.    R.    Co.   v. 
Heisel,  38  Mich.  63... 

82,  82'.  932,  94' 

Grand  Rapids    Booming  Co.   v. 

Jarvis,  30  Mich.  308..     524 

V.  Jarvis,  30  Mich.  321 435^ 

Grand  Trunk  R.  Co.  v.  Ricliard- 
son,  91  U.S.  454,  2a  L. 

ed.  356. _ 667' 

<^ranger  ».  Swart,  1  AYooIw.  88.  399" 

Grant  v.  Chase,  17  Mass.  443 

420^  573^  574^ 

V.  Davenport,  18  Iowa,  179  500' 

v.  Drew,  1  Or.  35 480- 

V.  Drew,  1  Or.  38.. 4809 

V.  Erie,  69  Pa.  420,  8  Am. 

Rep.  272 330* 

V.  Kuglar,  81  Ga.  637,  3  L. 

R.  A.  606 410S  462' 

*.  Ricker,  74  Me.  481 624* 

V.  Ricker,  74  Me.  487 623^ 

V.  Stillwater,  35  Minn.  242 

lOOS  342' 

Graves®.  Moses,  13  Minn.  335...  637' 
V.  Shattuck,  35  N.  H.  257.  560' 
V.  Smith,  87  Ala.  450,  5  L. 

R.  A.  298... 2112 

V.  Thomas,  95  Ind.  361. 29^  117 

V.  Thomas,  95  Ind.  364 110' 

Gray  v.  Boston  Gas  Light  Co.  114 

Mass.  149 

104^  105^  106,  150' 

V.  Chicago,  I.  &  N.  R   Co. 
77  U.  S.  10  Wall.  454, 

19  L.  ed.  969. .465^' 

V.  Harris,  107  Mass.  492.. 431-  * 
V.  St.  Paul  &  P.  R.  Co.  13 

Minn.  315 90' 

V.  Second  Ave.  R.  Co.  65 

N.  Y.  561 6125 

Greasly  v.  Codling,  2  Ring.  263..   473' 
Great  Falls  Co.  v.  Worster,  15  N. 

H.  460.. 545" 

Great  Northern   R.  Co.  v.  Swaf- 

field,  L.  R.  3Exch.  132  639« 
Greatrex  I).  Hay  ward,  8Exch.  291   296- 
Great  Western  R.  Co.  v.  Braid,  1 
Moore,   P.    C.   (N.  S.) 

101 15.5« 

V.  Morthland,  30  111.  451..    147' 
Greeley  v.  ]\Iaine  Cent.  R.  Co.  53 

Me.  200.. .-    147« 

Green  «.  Chelsea,  24  Pick.  71...  564' 
v.  Collins,  86  N.  Y.   246.. 

1673,  419' 


Green  v.  Doyle,  21  111.  App.  205. 

.' 591'.  615' 

1).  Knife   Falls   Boom   Co. 

35  Minn.  155 557' 

Green  &  B.  R.  Nav.  Co.  v.  Cliesa- 

peake,  O.  &  S.  W.  R. 

Co.  (Ky.)  2  L.    R.  A. 

510 464^  46.i« 

V.  Palmer.  83  Ky.  646 465* 

Green  Bay  &   j\I.    Canal   Co.  v. 

Kaukauna  Water  Pow- 
er Co.  70  Wis.  653...  418' 
Greene  v.  New  York  C.  &  H.  R. 

R.  Co.  12  Abb.  N.  C. 

124 94',  2473 

«.  Nunnemacher,  86  Wis. 

50...   

79',  80-,  126*,  2912,  4713  47,5s 
Greenleafs.  Francis,  18  Pick.  117 

123,  2.57-',  4543 

V.  Francis,    18    Pick.    117, 

119,  122 122 

».  Illinois  Cent.  R.  Co.  29 

Iowa  14.... 612' 

Greenslade  v.  Halliday,  6  Bing. 

379. .---    443« 

Greenwald  v.  Kappes,  31  Ind.  216  23P 
Greenwoods.  Louisville,  13 Bush, 

229... 335' 

Greer  v.  Haugabook,  47  Ga.  282. 

4:9*,  486*,  487* 

Gregg  «.  Gregg,  55  Pa.  227 59P 

Gregory  v.  Bush,  64   Mich.  37,  7 

West.  Rep.  169.. .3583,  424* 
V.   Bu^sh,    64    Mich.   37,  7 

West.  Rep.  172 299^ 

Greye's  Case,  Owen,  20 354.  499« 

Gridley  v.  Bloominirton,  68  111.  47  114' 
V.  Bloomington,  68  111.  50. 

10«*,  109,  109' 

Gries  v.  Beck,  24  Ohio  St.  329...  626^ 
Griffin  v.   New   York,   9   N.    Y, 

456 342* 

V.  Slireveport  &  A.  R.  Co. 

41  La.  Ann.  808. 82' 

V.  Williamstown,  6  W.  Va. 

312. 342',  343- 

Griffith  V.   McCullum,  46  Barb. 

561. - 469' 

Griffiths  V.  Morrison,   106  N.  Y. 

165,  7  Cent.  Rep.  773. 

169*,  171'  3 

Griggs  V.  Fleckenstein,  14  Minn. 

81 367' 

Grigsby    v.    Clear    Lake    Water 

Works  Co.  40  Cal.  396 

75*,  79',  4753 

Grill  V.  General  Iron  Screw  Collier 

Co.     L.    R.    1    C.    P. 

600.... 490 


xlvi 


TABLE   OF    CASES. 


Gross  V.  Lampasas,  74  Tex.  195.. 

258^  302',  30.3' 

Groton  v.  Hurlburt,  22  Cono.  178  3748' 
Grove  v.  Fort  Wayne, 45  Ind.  429,      . 

15  Am.  Kep.  262-264-  *,  577* 
Guest  V.  Reynolds,  68  111.  478,  18 

Am.  Rep.  570 38' 

Guille  «.  Swan,  19  Johns.  381.. .  144' 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Fuller, 

63  Te.x.  467 180* 

V.  Morris,  67  Tex.  692 89-* 

V.  Witte    (Tex.)    4   S.  W. 

Rep.  490. 654' 

Gulf  Pond  Oyster  Co.  v.  Baldwin, 

42  Conn.  255..- ..    495^ 

Gundry  v.  Felt,  1  T.  R.  334,  337.  543' 
Gwinnell  v.  Earner,  L.  R.  10  C.  P. 

658    49, 

49^  63'«,  63,  633,  io84^  io9' 


n. 


Hacke's  Appeal,  101  Pa.  245 577*' 

Hackett  v.  Wilson,  12  Or.  25 

482',  4843",  487' 

Hackstack  «.  Keshena  Imp.  Co. 

66  Wis.  439.... 556'^ 

Hadden  v.  Shoutz,  15  111.  581  .-.    166' 
Hadley  v.  Taylor,  L.  R.  1  C.  P. 

53 , .- 

412,  739^  105',  110',  117,  131' 
Haflord  v.  New  Bedford,  16  Gray, 

297 - 3345 

Hagan  v.  Campbell,  8  Port.  (Ala.) 

9,  33  Am.  Dec.  267 397' 

V.  Sharpe,  7  Car.  &  P.  755.   619' 
Hagg  V.   Vanderbeurgh   County 

Comrs.  60Ind.  511---    335*5 
Habn  V.  Garratt,  69  Cal.  146 

592'«,  593* 

Haight  v.  Keokuk,  4  Iowa,  199.. 

372S,  380%  3863 

Hail  v.  Reed,  15  B.  Mon.  479 ... .     80« 
Haines  v.  Hall,  17  Or.  165,  3  L. 

R.  A.  609,  note 4063 

T.  Roberts,  7  El.  &  Bl.  625     38^ 
V.  Welch,  14  Or.  319 

4023,  405%  4083,  5562 

Haldeman  «.  Bruckhart,  45  Pa. 

514 123,  2813,  283 

Hale  «.  Oldroyd,  14  Mees.  &  W. 

789.. 5785 

Hall  V.  Armstrong,  53  Conn.  554, 

1  New^Ene:.  Rep.  831.  1753 
V.  Augsbury,  46  N.  Y.  622  263' 
V.  Augsbury,  46  N.  Y.  625   262* 

V.  Ionia,  38  Mich.  493 453' 

V.  Kitson,  4  Chand.  (Wis.) 

20 80^  4713 


Hall  V.  McCaughey,  51  Pa.  43.. 

-571',  577* 

V.  McLeod,  3  Met.  (Ky.)  98 

--- 236\  437^- 

V.  Ripley,  119  Mass.  135  --    127*- 
■y.  Swift.  6  Scott,  167. -443«,  571' 
Hall  &  S.  R.  Co.,  Ee,  5  Mees.  & 

W.  327.-- 401' 

Halladay  v.  Marsh,  3  Wend.  142.   5913 
Hallock  V.  Baranski,  Daily  Reg. 

Aug.  9,  1884 .-.-  -2473 

Halsey  v.  McCoimick,  18  N.  Y. 

147- 396%  401* 

V.  McCormick,  18  K  Y.  149   397* 
V.  Rapid  Transit  R.  Co.  47 

N.  J.  Eq.  ■ 2513 

Hamilton  v.   Columbus,   52  Ga. 

435 288',  304* 

'6.  Donegall,  3  Ridgway.  t. 

Hardw.  267- 531',  549^ 

V.  Farrar,  128  Mass.  492  -.    5713 
D.  New  York  &  H.  R.  Co. 
9  Paige,  171.  4  N.  Y. 

Ch.  L.  ed.  653 728,  732 

©.  Vicksburg,  S.  &  P.  R. 
Co.  119  U.  S.  280,  30 

L.  ed.  393 463',  464** 

V.  White,  5  N.  Y.  9 -   262* 

v.  Whitridge,  11  Md.  138- -     79' 
Hamilton   County  v.  Mighels,  7 

Ohio  St.  100 3393 

Hamlin  v.  Pairpoint  Mfg.  Co. 
141   Mass.  51,  2  New 

Eug.  Rep.  143 561*5 

Hammack  v.  'White,  11  C.  B.  N. 

S.  588-593 136« 

V.  White,  11  C.  B.  N.  S. 
588,  31  L.  J.  N.  S.  C. 

P.  129 144*,  146« 

Hammond  v.  Fuller,  1  Paige,  197, 

3  N.  Y.  Ch.  L.  ed.  614  476* 
V.  Schifif,  101  N.  C.  161-..-   333* 
V.  Zehner,  21  N.  Y.  118.-.    188^ 
Hampson  v.  Taylor,  15  R.  I.  83, 

1  New  Eng.  Rep.  117.   366 
«.  Taylor,  15  R.  I.  83,  85,  1 
New  Eng.  Rep.  117,  3 
New  Eng.  Rep.  640...    3653 
Hancock  v.  Wentworth,   5  Met. 

446- 5732,  5752 

Hand  v.  Brookline,  126  Mass.  324 

..-- 34423,  3481 

Handelun  v.  Burlington,  C.  R.  & 

N.  R.  Co.  72  Iowa,  709   136« 
Handly  v.  Anthony,   18  U.  S.  5 
Wheat.  380,  5  L.  ed. 

113.. 399»' 

Handy  side  v.  Powtrs,  145  Mass. 
123,  5  New  Eng.  Rep. 
179 41*,  63* 


TABLE    OF    CASES. 


xl 


vu 


Haney  v.  Compton,  36  N.  J.  L. 

507 -- 54P 

Hanford  v.  St.  Paul  &  D.  II.  Co. 

43  Minn.  104,  7  L.  R. 
A    709  559^ 

Hanlej'C.  ClarCnO  ^ia9s."263"   434^ 
JIanlon  v.  Ingram,  1  Iowa,  108  ..    645^ 

V.  Ingram,  3  Iowa,  81  644- 

V.  Keokuk,  7  Iowa,  488...    128' 
V.  South  Boston  R.  Co.  129 

Mass.  310 127-' 

Hannam  v.  Mockelt,  2  Barn.  &  C. 

9U 528 

Hannem  v.  Pence,  40  Minn.  127. 

9',  14-',  27^  1073 

Hannibal  &  St.  J.  R.  Co.  v.  Mis- 
souri River  Packet  Co. 

125  U.  S.  260,  31  L.  ed. 

731 -   463^ 

Hannoa  v.  Hargadon,  10  Allen, 

106.... 8O35 

V.  St.  Louis  County,  62  Mo. 

313 837',  342' 

Hansburg  v.  Basin,  3  111.  App. 

531. 594'° 

Hanway  v.  Boultbee,  4  Car.  &  P. 

350 628S 

Harbert's  Case,  3  Coke,  fol.  11,  p. 

30. 225 

Hardcastle  v.  South  Yorkshire  R. 

&  R.    D.  Co.  4  Hurl. 

&N.  67.26^  116',  117',  119 
Hardesty  v.  Ball,  43  Kan.  151  ...  427' 
Hardin  v.  Ledbetter,  103  N.  C.  90  546^ 
Harding  v.  Stamford  Water  Co. 

41  Conn.  87... 454^ 

V.  Stamford  Water  Co.  41 

Conn.  92 443« 

V.  Whitney,  40  Ind.  379..  461=*  ^ 
Hargreaves  v.  Deacon,  25  Mich.  1  26'^ 
Harlan  &  H.  Co.  v.  Paschall,  5 

Del.  Ch.  485 384^ 

V.  Paschall,  5  Del.  Ch.  438.  463=* 
Harlow  v.  Humiston,  6  Cow.  189 

36\  250' 

V.  Stinson,  60  Me.  347 593- 

Harmon  v.  Kline,  52  Ark.  251...   202^ 
Harold  v.  Jones,  86  Ala.  274,  3  L. 

R.  A.  406 70,  4023,  558* 

Harper  v.  Williams,  110  N.  Y. 

260.  13  Cent.  Rep.  433  565^ 
Harrigan  v.  Wilmington  (Del.)  11 

Cent.  Rep.  251 

316,  328',  332' 

Harriman  v.  Pittsburgh,  C.  &  St. 

L.  R.  Co.  45  Ohio  St. 

11.. 291 

Harrington  v.  Edwards,  17  Wis. 

586.. 376^6 

V.  Peck,  11  111.  App.  159..    297* 


Harris  v.  Cohen.  50  Mich.  324...     52' 
T.  Northern  Ind.  R.  Co.  20 

N.  Y.  232 639* 

Harrison  v.  Berkley,  1  Strobh.  L. 

548 656» 

V.  Brown,  5  Wi.s.  27 591^ 

«.  Great  Northern    R.  Co. 

3  Hurl.  &  C.  231 431* 

V.  Missouri  Pac.  R.  Co.  88 
Mo.  625,  5  West.  Rep. 

395 ....635'o,  636* 

V.  Sterrett,  4  Harr.  &  McH. 

540. 75',  79^  359',  475^ 

narrower  v.  Ritson,  37  Barb.  301   469' 
Hart  V.  Albtiuv,  3  Paige,  213,  3 

N.  Y.  Ch.  L.  ed.  121.  648« 
V.  All)any,  9  AVend.  571.. 247'' » 
V.  Baldwin,  1  N.  Y.  Leg. 

Obs.  139 233* 

V.  Chalker,  5  Conn.  311 ...   238' 

V.  Evans,  8  Pa.  13 471* 

V.  Hill,  1  Whart.  132 549* 

V.  Jamaica  Pond  Aqueduct 
Corp.   133  Mass.  488.. 

....454^  4563 

V.  Lyon,  90  N.  Y.  668 220* 

V.  Vose,  19  Wend.  365 427'» 

V.    Western    R.   Corp.    13 

Met.  99 654'  *,  664' 

V.  Windsor,  12  Mees.  &  W. 

68. 61* 

Hartford    Bridge    Co.   v.   Union 
Ferry    Co.    29    Conn. 

229 4823 

Harthcock  v.  Swift  Island  Mfg. 

Co.  72  N.  C.  410 482* 

Hartley  v.  Hallwell,  2  Stark.  212  606^ 
V.    Harriman,    1    Barn.    & 

Aid.  620 586*,  619^ 

Hartt  V.  Evans,  8  Pa.  13 79* 

Hartwell  v.    Mutual  L.  Ins.  Co. 

50  Hun,  497 422'  ^,  423^ 

Hartzallt).  Sill,  13  Pa.  248 547^ 

Harvard   College  v.    Stearns,    15 

Gray,  1 75*,  474^ 

Harwood  v.  Tompkins,  24  N.  J. 

L.  425 1763 

Haskell  v.  New  Bedford,  108  Mass. 

208 292*, 

322',  326*5,  327*5  8,  318' 
V.  New  Bedford,  108  Mass. 

208.   216 468* 

Hassenver  v.  Micliigan  C.  R.  Co. 

48  Mich.  204 ...      81 

Hasson  v.  Oil  Creek  &  A.  R.  R. 

Co.  8Phila.  556 265' 

Hastings  v.  Livermore,  15  Gray, 

13.. 575* 

Hatch  V.   Dwight,  17  Mass.   289 

571',  5315 


xlviii 


TABLE    OF   CASES. 


Hatch  V.  D wight,  17  Mass.    889, 

296 455" 

V.   Vermont  C.  R.  Co.  28 

Vt.  143 75^  79'^  4753 

Hathaway  v.  Tinkhara,  148  Mass. 

85 624' 

Hauch  V.  Hernandez,  41  La.  Ann. 

992  ....    645'^ 

Haugh's  App."  lb2"Pa.'42"''28"7^  288^ 
Haughey  v.  Hart,  62  Iowa,  96... 

121',  593' 

Haupt's  Appeal,  125  Pa.  222..-.  453 
Havens  v.  Klein,  51  How.  Pr.  82.  191-2 
Havcrsticli  v.  Sipe,  33  Pa.  368...  180'^ 
Hawkes  v.  Kennebeck,  7  Mass. 

461,  463 339' 

Hawkesworth  v.   Thompson,  98 

Mass.  77  .    124' 

Hawkins  ?j.  Cooper,  8'CarV&  P.473  35^ 
Hawkins  Point  Lighthouse  Case, 

39  Fed.  Rep.  77 561" 

Hawley  v.  Cramer,  4  Cow.  717-.  242' 
Hay  v.  Cohoes  Co.  2  N.  Y.  159. 

?,9^  439' 

V.  Cohoes  Co.  3  Barb.  48.     79' 
Hayden  v.  Dutcher,  31  N.  J.  Eq. 

217 179^  180^ 

T.  Noyes,  5  Conn.  391 

.- 531',  549s 

V.  Skillings.  78  Me.  413.  3 

New  Eng.  Rep.  174.. 

241',  265* 

Hayes  0.  Bowman,  1  Rand.  417, 

420 50P 

V.  De  Vito,  141  Mass.  233, 

1  New  Eng.  Rep.  749.    242* 
V.  Michigan  C.  R.  Co.  Ill 

U.   S.    228,  28  L.   ed. 

410 739.  658' 

V.  Waldron,  44  N.  H.  580.  443« 
1).  Waldron,  44  N.  H.  585.   288^ 
Hayford  v.  Spokesfield,  100  Mass. 

491 .577^  578'2  8,  58P 

Haynes  v.  Thomas,  7  Ind.  38 82'  * 

V.  Wells,  26  Ark.  464.479*,  480' 

Hays  «.  Hays,  19  La.  351. 295^ 

T.  Hinkleman,  68  Pa.  324.    395^ 

v.  Millar,  77  Pa.  238 613' 

V.  Miller,  6  Hun,  320.-642\  645« 
V.  Miller,  6  Hun,  322,  70  N. 

Y.  112 6472 

Hayward  v.  Knapp,  23  Minn.  430  405' 
Hazard  1).   Robinson,   3    Mason, 

272... .--.175',  574'*  8 

Hazen  v.  Boston  &  M.  R.  Co.  2 

Gray,  577,  580 241' 

V.  Essex  Co.  12  Cush.  478  532' 
Hazman  v.  Hoboken  L.  &  I.  Co. 

2  Daly,  130,  50  N.  Y. 

53 488\  489* 


Healy  v.  Chicago  &   .J.  R.  Co.  2 

111.  App.  435 377' 

Heartt  v.  Kruger,  121  N.  Y.  386, 

9  L.  R.  A.  135 

217',   219.-^  2233,    573*,    575' 

Heath  v.  Richer,  2  Me.  72 593=' 

Hedges  v.  3Iadison  Count}',  6  111. 

567.. 3393 

Heeg  V.  Licht,  80  N.  Y.  579 10« 

V.  Licht,  80  N.  Y.  582....      70' 
Heeney  v.  Sprague,  11  R.  I.  456. 

103',  114',  6623 

Heilbron  v.  Fowler  Switch  Canal 

Co.  75  Cal.  426.410*  ^,  450* 
v.  76  Land  &  Water  Co.  80 

Cal.  189 410^  4505,  4513 

Heine   v.  Merrick,  41   La.    Ann. 

194 ...    216'  2 

Heinlen  v.  Fresno  Canal  &  I.  Co. 

68  Cal.  35... 459* 

Helena  v.  Thompson,  29  Ark  569   332' 
Hemphill  «.  Boston,  8  Cush.  195. 

243',  265* 

Hendershott  v.Ottumwa,  46  Iowa, 

658 2922 

Henderson  v.  Cent.  Pass.  R.  Co. 

21  Fed.  Rep.  358 579^ 

V.   Minneapolis,  32   Minn. 

319 298' 

V.  New  York  C.  R.  Co.  78 

N.    Y.   423,    17    Hun, 

344 90' 

Hendricks  «.   Johnson,   6  Port. 

(Ala.)  472 287" 

«.  Stark,  37  N.  Y.  106....    209' 

V.  Stark,  37  N.  Y.  108 209^ 

Henly  v.    Lvme,    5  Bing.    91,  3 

Barn.    &     Ad.    77,    2 

Clark  &F.  331 

338^340,  344* 

Henn's  Case,  Sir  W.  Jones,  296..    124* 
Henrv  v.  Koch,  80  Ky.  391,  44 

Am.  Rep.  484 

166',  171«,  2103 

v.  Koch,  22  Am.  L.  Reg. 

N.  S.  394 577« 

V.  Newburvport,  149  Mass. 

582,  5  L.  R.  A.  179.... 
78*   381 ' 

390i,"4"6'8"'','"474','  477^,  560^ 

V.  Sneed,  99  Mo.  407 183^ 

V.  Southern  Pac.  R.  Co.  50 

Cal.  183 654'" 

Henry  County  Suprs.  v.  Winne- 
bago    Swamp    Drain. 

Co.   52  111.  299,454...    222« 
Henry  County  Turnp.  Co.  v.  Jack- 
son, 86  Ind.  Ill 128' 

Henshaw  v.  Supervisors,  19  Cal. 

150 479* 


TABLE    OF    CASES. 


xlix 


Hentz  V.  Long  Island  R.  Co.  13 

Barb.  646 72« 

Hepburn's  Case,  3  Bland,  Ch.  98  463- 
Heron  v.   The    Marchioness,   40 

Fed.  Rep.  330 569^  ■•  ^ 

Herrick  v.  Gary,  65  111.  101 633- 

V.  Marshall,  66  :\Ie.  435  ..-    160^ 
V.  Sullivan,  120  Mass.  576.    144^ 
Herrington  v.  Lansingburgh,  110 

N.  Y.  145 114' 

Hervey  v.  Nourse,  54  Me.  256 135* 

Hetrich  v.  Deachler,  6  Pa.  32 283' 

Hetlrick  v.  Page,  82  N.  C.  65  ...    535« 
Hewes  v.  McNamara,    106  Mass. 

281 608 

Hewey  ».  Nourse,  54  Me.  256... 

645-,  664' 

V.  Nourse,  54  Me.  259.645«,  647' 
Hewison  v.  New  Haven,  37  Conn. 

475 -   34P 

Hewlins  v.  Shippam,  7  Dow.  & 
Ry.  783,  5  Barn.  &  C. 

221.. 420-* 

Hexamer  v.  Webb,  101  N.  Y.  377, 

2  Cent.  Rep.  439 100^ 

Hickey  v.  Boston  &  L.  R.  Co.  14 

Allen,  429 365- 

Hickok  V.  Hine,  23  Ohio  St.  523 

79',  377^405',  412' 

V.  Hine,  23  Ohio  St.  527  ..   376* 
V.  Pittsburgh,  16N.Y.  161   328-^ 
Hicks  V.  Silliman,  93  111.  255.2953,  299* 
Hide  V.  Thornborough,  2  Car.  & 

K.250 193' 

Hieatt  v.  Morris,  10  Ohio  St.  523 

208',  213',  233^ 

Higert  v.  Greencastle,  43  Ind.  574  264= 
Higgins«.  Dewey,  107  Mass.  494 

363-,  6415, 

6443,    6456_    647'\    652',  654^ 
v.  Flemington   Water  Co. 

36  N.  J.  Eq.  538 456^ 

v.  Kusterer,-41  Mich.  318.   517' 

Hill  V.  Boston,  122  Mich.  344 

- .-HIO^  3375,  341' 

V.  Boston,  122  Mass.   344, 

358. 349- 

V.  Boston,   122  Mass.   358, 

359 3433 

1).  Cincinnati,  W.  &  M.  R. 
Co.    109    Ind.    511,    8 
West.  Rep.  47.. -.2983,  358' 
V.  Crosby,  2  Pick.  466  ....    234^ 
«.  Cutting,  113  Mass.  107  .    181' 
V.  Fond  du   Lac,  56  Wis. 

242 69^ 

«.  Lord,  48  Me.  83,  97  ....    564^ 

©.North.  34Vt.  604 6343 

«.  Ontario,  S.  &  H.  R.  Co. 

13  U.  C.  Q.  B.  503  ...   667^1 


Hill  V.   Port  Roval  &  W.  C.  R. 
Co.  (S.  C.)  5  L.  R.  A. 

351.. 656' 

V.  Sayles,  12  Cush.  454,  457  476^ 
V.  Smith,  27    Cal.  476,    32 

Cal.  166. 413'^ 

V.  Smith,  39  Conn.  210 362* 

V.  United   States,  39  Fed. 

Rep.  172 380- 

v.  Warren,  2  Stark.  378...    233" 
D.  Wiusor,  118  Mass.  251.. 

610^  6563 

Hills  V.  Miller,  3  Paige,  2.54,  257, 

3N.Y.Ch.L.ed.l41.144  185' 
Hinchliffe  v.  Kinnoul,  5  Bing.  N. 

C.  1 573« 

Hinchman  v.  Paterson  Horse   R. 
Co.  17  N.  J.  Eq.  75.. 

..76',     934 

Hinckley  v.  Emerson,  4  Cow.  352  627'* 
Hinet).  Cushing,  53  Hun,  519...   651 
v.  Wooding,  37  Conn.  123 

..6O93,  621-' 

Hine,  The,  v.  Trevor,  71  U.  S.  4 
Wall.  555,    18  L.  ed. 

451 370 

T.  Trevor,  71  U.  S.  4  Wall. 
555,  561,  ISL.ed.  451, 

453.. 371' 

V.  Trevor  71  U.  S.  4  Wall. 

561,  i^^  L.  ed.  453....    371« 
Hines  v.  Charlotte,  72  Mich.  278, 
1  L.  R.  A.  844,  note.. 

3103,  3355 

V.  Jarrett,  26  S.  C.  480.421'^  433-^ 
V.  Lockport,  50  N.  Y.  2.36. 

SW,  329*.  331',  343= 

Hiss  V.  Baltimore  &  H.  P.  R.  Co. 
52   Md.    242,    36   Am. 

Rep.  371 93^  248- 

Hitchens  v.  Shaller,  32  Mich.  496   181' 
Hitchins  v.   Frostburg,   68    Md. 
100,   6  Am.    St.  Rep. 

422 290',  304* 

V.  Frostburg,  68   Md.   100, 
10  Cent.  Rep.  539.... 

....326*,  328',  349- 

Hittinger*.  Eames,  121  Mass.  540, 

546.. 550« 

Hoag  V.  Lake  Shore  &  M.  S.  R. 

Co.  85  Pa.  293 142' 

V.  Wallace,  28  N.  H.  547..    582- 
Hobart  v.  Milwaukee  R.   Co.  27 
Wis.  194,  9  Am.  Rep. 

461 ..m\  2AS- 

Hoboken  v.  Pennsylvania  R.  Co. 
124  U.  S.  656,  31  L.  ed. 

543 3843*5 

Hoboken  L.  &  I.  Co.  v.  Hoboken, 

36N.  J.  L.  549 71' 


D 


1 


TABLE    OF   CASES. 


6I52 

497- 
297^ 
513^ 


Hobson  V.  Monteith,  15  Or.  251  .   388* 
Hockett  V.  State,  105  Ind.  250,  2 

West.  Rep.  704 97' 

Hodgdon  v.  Little,  14   C.   B.   N. 
S.  Ill,  16  C.  B.  N.  S. 

198 5323 

Hodge  «.  Boothby,  48  Me.  71....378''  ' 
Hodges  V.  Williams,  95  N.  C.  331 

3741  ^  40436 

Hodgkins     v.     Farrington,     150 
Mass.  19,    5  L.  R.  A. 

200. I872,  202^  203' 

Hodgkinsoa  v.  Ennor,  4  Best.  & 

S.  229 8^  287',  288^ 

Hoffman  v.  Kuhn,  57  Miss.  746.. 

216^  218,  5748 

v.  Savage,  15  Mass.  130 ... .    578* 
e.  Tuolumne  County  Water 

Co.  10  Cal.  413.-432',  440= 
Hogan  v.  Sharpe,  7   Car.   &  P. 

755 

Hogarth  v.  Jackson,  Moody  &  .M. 

58,  2  Car.  &  P   595... 

Hogenson  v.  St.  Paul,  M.  &  M.  R. 

Co.  31  Minn.  224 

Hogg  V.  Beerman,  41  Ohio  St.  81- 

98. 

V.  Zanesville  Canal  &  Mfg. 

Co.  5  Ohio,  410 370^6 

Holbrook  v.  Utica  &  S.  E.  Co.  12 

N.  Y.  236 139',  147^ 

Holden  v.  Chandler.  61  Vt  291_394''5  8 
V.    Robinson   Mfg.    Co.  65 

Me.  215 

377'  '\  389-,  404^  412' 

V.  Shattuck,  34  Vt.  336  ...   596^ 
Holford  V.  Bailey,  13  Q.  B.  425, 

444 

V.  Bailey,  18  L.  J.  N.  S.  Q. 

B.  109 

V.  George,  L.   R.   3  Q.  B. 

689.. 

V.  Pritchard.  3  Exch.  793  . 
Holland  v.  New  York  (C.  P.)  30 

N.  Y.  S.  R.  850 

Hollenbeck    v.    McDonald,     112 

Mass.  249 573^ 

Holliman  v.  Kingery,  81  Ga.  624.   599^ 
Holman    ».    Townsend,    13   Met. 

297,  299 75^  347^,  474^ 

Holmes  v.  Cortheli.  80  Me  31,  5 

New  Eng.  Rep.  794...      79^ 
T.  Delaware,   L.  &  vV.   R. 

Co.  89  iN.  Y.  212 252< 

V.  Goring,  2  Bing.  76.. 219,  575' 
V.  North    Eastern    R.    Co. 

L.  R.  6  Exch.  123....  20^5 
V.  North  Eastern  R.  Co.  L. 
R.  4  Exch.  254,  affd. 
L.  R.  6  Exch.  123.203,  ISO'' 


.   4982 


499^ 
499^ 

392* 


Holmes  v.  North  Eastern  R.  Co. 
38  L.  J.  N.   S.  Exch. 

161 568' 

V.  Oregon  &  C.   R.   Co.    5 

Fed.  Rep.  523,  538 370' 

V.  Seely,  19  Wend.  507 124* 

Holsman  v.  Boiling  Spring 
Bleaching  Co.    14  N. 

J.  Eq.  335 8^  291*,  428^ 

Holtc,  Sargent,  15  Gray,  97 578^ 

V.    Somerville,    127    Mass. 

408 908 

Holyoke  Water  Power  Co.  v.  Ly- 
man, 82  U.  S.  15  Wall. 
500,  21  L.  ed.  133  ... 

382^8,  531',  532',  5343- 

Homan  v.  Stanley,  66  Pa.  464 110' 

Homer  v.  Everett,  15  Jones  &  S. 

300 193 

Homochitts  River  Comrs.  ■».  With- 
ers, 29  Miss.  21. 454'^ 

Honsee  d.  Hammond,  39  Barb.  89   287'^" 
Hooker  v.  Cunimings,  20  Johns. 90 

3773,  513',  532' 

V.  Cummings,  20  Johns.  90, 

99-101 501^ 

V.  Cummings,  20  Johns.  90, 

100 501- 

V.  Cummings,  20  Johns.  91, 

11  Am.  Dec.  249 416' 

v.  Cummings,     20    Johns. 

99 355* 

V.  Cummings,  20  Johns.  100     503 
V.  New   Haven  &  N.    Co. 

14  Conn.  146 435^ 

Hooksett  V.  Concord  R.  Co.   38 

N.  H.  242 664> 

Hooper  v.  Hobson,  57  Me.  273...   404«- 
V.  Wilkinson,  15  La.  Ann. 

497 2953 

Hopkins  v.  Baltimore  &  P.  R. 
Co.  6  Mackey,  311.  12 

Cent.  Rep.  398.. 96' 

V.  Great  ?f.  R.  Co.  L.  R.  3 

Q.  B.  Div.  224 484«^ 

V.  Western    P.    R.  Co.    50 

Cal.  190 74'' 

Hopkins  Academy  v.  Dickinson, 

9  Cush.  544 401'^ 

V.  Dickinson,  9  Cush.  548.   397^ 
V.  Dickinson,  9  Cush.  551 

396^  397'' 

Horner  v.  Nicholson,  56  Mo.  220   233* 

Horton  v.  Ipswich,  12  Cusli   488.    129* 

V.  Nashville,  4  Lea,  39,  40 

Am.  Rep.  4 330' 

Hosher  «.  Kansas   City,  St.  J.  & 

C.B.  R.  C0.6OM0.  333  361» 
Hotel  Asso.  of  Omaha  v.  Walter, 

23  Neb.  280 193 


TABLE   OF    CASES. 


li 


Houck  V.  Wachter,  34  Md.  265.. 

..80'  ^  l'26^  4713,  475i^  4761 

V.  Yates,  82  111.  179 389'^ 

Houfe  V.  Fulton,  34  Wis.  608...     69i 
Hough  V.  Doylestown,  4  Brewst. 

833 453= 

Hougliam  v.  Harvey,  33  Iowa,  203    473 
Houusell  V.  Smyth,  7  C.  B.  N.  S. 

729. 119 

V.  Smyth.  29  L.  J.  N.  S.  C. 
P.  303,  7   C.  B.  N.  S. 

731..- 

23\  26^  27',  41\  150^473' 
House  V.  Metcalf,  27  Conn.  631.. 

.44',  49^  512,  52-2 

Houston  &  T.  C.  R.  Co.  v.  Clem- 

mons,  55  Tex.  88 365-^ 

V.  Gorbett,  49  Tex.  573...   363' 
V.  Odum,    53  Tex.    343,   2 
Am.  &  Eng.  R.  R.  Cas. 
503  94' 

Hover  v.  Barkhoff,  44  N.  Y.  113 

342'  ^  662^ 

Hovey  v.  Mayo,  43   Me.  322 305-' 

Howard  v.  Fessenden,  14  Allen, 

124 1633 

V.   Ingersoll,   54  U.    S.  13 
How.    381-427,    14  L. 

ed.  189-209. 357« 

V.  Lee,  3  Sandf.  281 13P 

Howard  County  v.  Legg,  110  Ind. 

479 115' 

Howe  V.  Newmarch,  12  Allen,  49  233'^ 
Howell  ».  Estes,  71  Tex.    690... 

1913,  5732 

v.  King,  1  Mod.  190 238 

V.  M'Coy,3Rawle,  256.287^,  291-* 
V.  M'Coy,  3  Rawle,  269...     442 
Howland  v.  Vincent,  10  Met.  371 

118,  120 

Hoy  V.  Sterrett,  3  Watts,  327 

425,  426',  547« 

Hoyt  V.  Hudson,  27  Wis.    656,  9 
Am.  Rep.  473. ...1483, 
295',  299'  3,  3003,  3-)7«  361' 
V.  JeflEers,   30  Mich.   181.-654'  = 
Hubbard  v.  Bell,  54  111.  110.. 4033,  408-» 

V.  Bell,  54  111.  113 5503 

».  Man  well,  60  Vt.   235,   6 

New  Eng.  Rep.  773...   398' 
V.  Russell,  24  Barb.  404. ..     56' 

B.  Town,  33  Vt.  295 ISO'^ 

Hubbell  V.  Viroqua,  67  Wis.  343  3103 
V.  Warren,  8  Allen,  173...  160'' 
V.  Yonkers,  35  Hun.  319..  313 
V.  Youkers,  104  N.  Y.  434, 

6  Cent.  Rep.  499 

1.38',  144^  314' 

Hubert  i\  Groves.  1  Esp.  148.126^  475^ 
Huck  V.  Flentye,  80  111.  258 226 


Hudgins  v.  Perry,  7  Ired.  L.  102.   634* 
Hudson  V.  Cuero  L.  &  E.  Co.  47 

Tex.  58 479^  480^  4838 

v.  Roberts,  6  Exch.  697... 

5866,  608^  619* 

V.   Roberts,   6  Exch.  695- 
699,    30    L.    J.    N.    8. 

Exch.  299 6I93,  620* 

V.  Roberts,  6  Exch.  699,  20 

L.  J.  N.  S.  Exch.  399.   605* 
V.  Wabash  &  W.  R.  Co.  33 

Mo.  App.  667 655* 

Hudson  River  R.  Co.  v.  Loeb,  7 

Robt.  418 803,  4694 

Hudson    River    Teleph.    Co.    v. 
Watervliet    Turnp.    & 
R.  Co.  56  Hun,  67...     95* 
Huff  «.  McCauley,  53  Pa.  206...    183* 
Huffman  v.  San  Joaquin  County, 

21  Cal.  430 3413- 

Hughes  •».  Orange  Co.  M.  Asso. 

56  Hun,  396 109' 

V.  Percival,  L.  R.   8  App. 

Cas.  443 39,  233» 

V.  Providence  &  W.  R.  Co. 

3  R.  I.  493 35' 

V.  Providence  &  W.  R.  Co. 

2R.  I.  508,513 389* 

V.  Quentin,  8  Car.  &  P.  703  635'* 
Hulburt   V.  Leonard,  Brayt.  201.    236* 
Huling  V.  Chester,  19  Mo.  App. 
607,  3  West.  Rep.  175 

184'',  305',  330'^',  224* 

Hull  V.  Missouri  Pac.  R.  Co.  74 

Mo.  298 145* 

V.  Westfield,  133  Mass.  433  349^ 
Hulme  V.  Shreve,  4  N.  J.  Eq.  116  182' 
Hume  V.  New  York,  74  N.Y.  264 

343',  343* 

Humes  v.  Knoxville,  1  Humph. 

403 305* 

Humphrey  v.  Douglass,  10  Vt.  71   599'' 
V.  Irvin  (Pa.)  4  Cent.  Rep. 

687 ll^  91',  4333 

Humphreys  v.  Woodstown,  48  N. 
J.  L.  588,  7  Cent.  Rep. 

114.. 71» 

Humphries  v.  Brogden,  13  Q.  B. 

738,  743 438* 

V.  Brogden,  13  Q.  B.  739.. 

38',  190',  199* 

V.  Cousins,   L.  R.  2   C.  P. 

Div.   239 124',  273^ 

Huff  V.  McCauley,  53  Pa.  206 184* 

Hundhausen  v.  Bond,  36  Wis.  29     39* 

Hunt  «.  Boonville,  65  Mo.  620..    337* 

V.  New  Y'ork,  20  Jones  & 

S.  198 342* 

V.  Peake,  Johns.  Eng.  Ch. 

705 198 


lii 


TABLE    OF    CASES. 


Hunt  V.  Pennsylvania  R.  Co.  51 

Pa.  475 3232 

Hunter    v.    Wanamaker  (Pa.)  2 

Cent.  Rep.  70. 108' 

Huntington  v.  Asher,  9K  N.  Y.  604   158* 
V.  Asher,  96  N.  Y.  610....    li^8' 

V.  Asher,  96  N.  Y.  613 185- 

1).  Breen,  77  Ind.  30 128« 

V.  Lowndes,  40  Fed.   Rep. 

635 -    4933 

Huntress,  The,  2  Ware,  83..370S  37P  " 
Huntsman  v.  Nichols,  116  Mass. 

531 6202 

Hurd  1).  Curtis,  7  Met.  94,  115...    571' 

V.  Curtis,  19  Pick.  4^9 220* 

V.  Duiisniore,  63  N.  H.  171   572' 
V.  Rutland  &  B.  R.  Co.  25 

Vt.  116 591» 

Hurdnoan  v.  North  Eastern  R.  Co. 

L.  R.  3  C.  P.  Div.  168  299' 
Hurley  v.   Mississippi  &   R.    R. 

Boom    Co.    34    Minn. 

143 81* 

Hursts.  Dulany,  84  Va.  701 541"^ 

Huse  V.  Glover,  119  U.  S.  543,  30 

L.  ed.  487 372',  397^ 

Huson  V.  Young,  4  Lans.  63.243-,  245'' 
Hussey  v.  Ryan,  64  ]\Id.  426.  2 

Cent.  Rep.  636 

37^  493,  51M04'  \  123- 

Hussner  v.  Brooklyn  City  R.  Co. 

114  N.  Y.  433 73S  247= 

Huston  V.  Bybee,  17  Or.  140,  2  L. 

R.  A.  568-.-. 449= 

Hutchinson  v.  Copestake,  9  C.  B. 

N.  S.  863 255s 

V.  Granger,  18  Vt.  386 54.5* 

V.  Western  ■&  A.  R.  Co.  6 

Heisk.  634 491- 

Hutson  V.  New  York,  9  N.  Y.  163 

330'  34''- 
Huttemeier  ?j' Aibro,"l8"N."  Y.  50  166' 
Huyett  V.  Philadelphia  &  R.  R. 

Co.  23  Pa.  373. 669* 

Huzzey  v.  Field,  3  Cromp.  M.  & 

R.  432,  442 482- 

Hyatt  V.  Rondout,  44  Barb.  385..  342= 
Hyde  v.  Jamaica,  27  Vt.  443,  457  339^ 
Hyde  Park  v.  Borden,  94  111.  26.  184' 
Hydraulic  Works  Co.  v.  Orr,  83 

Pa.  332 31 

Hyndsz).  Shults,  39  Barb.  600... 

....167\  419- 


Idaho  Springs  v.  Filteau,  10  Colo. 

105. 332= 

Illidge   V.  Goodwin,  5  Car.  &  P. 

190.  193_..-367',611*,  61 3^  * 


Illinois  Cent.  R.  Co.  v.  Adams,  43 

III.  474 639* 

V.  McClelland,  43  111.  355, 

360 654',  666^ 

Illinois  Ins.  Co.  ».  Littlefield,  67 

111.  368 163*,  184* 

Illinois  River  Packet  Co.  v.  Peo- 
ria Bridge  Asso.  38 
111.  467 3765« 

Ilsley«).  Stubbs,  5  Mass.  383 602« 

Imlay  v.  Union  Branch  R.  Co.  26 
Conn.  249, 68  Am.  Dec. 
393 90' 

Imler^j.  Springfield,  55  Mo.  119.    805' 

Indermaur  v.  Dames,  L.  R.  1  C. 
P.  374,  L.  R.  3  C.  P. 
311 18',  30^  150^  568^* 

Indiana,  B.  &  W.  R.  Co.  v.  Barn- 
hart.  115  Ind.  399,  13 
West.  Rep.  435  ....30*,  25^ 
V.  Dailey.   110  Ind.  75,  8 

West.  Rep.  516 136^ 

V.  Overman,  110  Ind.  538, 

8  West.  Rep.  385 654^ 

Indianapolis  v.  Cook,  99  Ind.  10   128' 

V.  Emraelman.  108  Ind.  530. 

6  AYest.  Rep.  566 

24',  28*,  29'^  342' 

®.  Huffer,  30  Ind.  235,  237 

313,  3383,  3321 

V.  Kingsbury.  101  Ind.  300  81^ 
V.  Lawj-er,  38  Ind.  348 

290^  312' 

V.  Scott,  73  Ind.  196 331^' 

V.  Tate,  39  Ind.  383 312' 

Indianapolis &C.  R.  Co.  ».  Means, 

14  Ind.  30 147' 

V.  Paramore,  31  Ind.  143..  648» 
Indianapolis  &  St.  L.  R.  Co.  v. 

Calvert,  110  Ind.  555, 

9  West.  Rep.  338 94* 

«.  Stout,  53  Ind.  143 253^ 

Indianapolis,  B.  &  W.  R.  Co.  v. 

Hartley,  67  111.  439,  16 

Am.  Rep.  634 73«,  90' 

Indianapolis,  C.  &  L.  R.  Go.  «. 

Harter,  38  Ind.  557...  593^ 
Indianapolis  Cable  St.  R.  Co.  v. 

Citizens     St.    R.    Co. 

(Ind.)  8  L.  R.  A.  539, 

and  note 88' 

Indianapolis,  P.  &  C.  R.  Co.  v. 

Pitzer,    109  Ind.  179- 

188,  7  West.  Rep.  396.  657^ 
Ingals  V.  Palmondon,  75  111.  118. 

166'.  171«,  20r,  208' 

V.  Palmondon,  75  111.  133.   309' 

Inge  V.  Murphy,  10  Ala.  885 443* 

Ingersoll  v.  Stock  bridge  &  P.  R. 

Co.  8  Allen,  438 664' 


TABLE    OF    CASES. 


iiii 


Inglea  v.  Bringhurst.   1  U.   S.   1 

Dalf.  341,  1  L.  e(i.l67.   222^ 
Ingraham  v.  Camden  &  R.  Water 

Co.   82  Me.  335 257' 

1).  Hough,  1  Jones,  L.  39.. 

.- 2306,  2308 

V.  Hutchinson,  2  Conn.  584   425^ 
V.  Wilkinson.  4  Pick.  268, 

16  Am.  Dec.  342 

.377-\  397-«5 

V.  Wilkinson,  4  Pick.  268, 

273.--. - 397' 

«.  Wilkinson,  4  Pick.  273, 

not(Sl,3 5303,5315 

Ingram  v.  Treadgill,  3  Dev.  L.  59  SOP 
Inland  Fisheries  Comrs.  v.  Holy- 

oke  Water  Power  Co. 

104  Mass.  446,  6  Am. 

Rep.  247....501^  533',  534^ 
Inman  d.  Tripp,  11  K.  I.  520,  23 

Am.  Rep.  520.. 

291=,  292^  3045 

Innis  V.  Cedar  Rapids,  I.  F.  &  N. 

W.   R    Co.    76    Iowa, 

165,  2L.  R.  A.  283.-.    473 
Iron   Mountain   R.   Co.   v.   Bing- 
ham, 87  Tenn.  522,   4 

L.  R.  A.  622. 35^ 

Iron  R.  Co.  v.  Mowery,  36  Ohio 

St.  418 1555 

Irvin  V.  Wood,  4  Robt.  138  ..35^  lOS-* 
Irvine  «.  Wood,  51  N.  Y.  224 

45^  48,  523,  3334 

Irwin  V.  Brown  (Tenn.)  12  S.  W. 

Rep.  340. 405',  406^ 

V.  Fowler,  5  Robt.  482-73'°,  110' 
V.  Dixion,  50  U.  S.  9  How. 

10, 13  L.  ed.  25.77\  79',  236^ 
Ivay  V.  Hedges,  L.  R.  9  Q.  B. 

Div.  80 62« 

Iveson  V.  Moore,  1  Ld.  Raym.  486     70'' 
Ivinnev  v.  Stocker,  L.  R.  1  Ch. 

App.  396 574' 

Ivory  V.  Deerpark,  116  N.  ¥.476     31^ 

J. 

•Jackman  v.  Arlington  Mills,  137 

Mass.  277,  283.. 348* 

Jackson  v.   Allegheny,  41   Fed. 

Rep.  886 392' 2 

®.  Arlington     Mills,      137 

Mass.  277 45 

«;.  Babcock,  4,John8.  419-.    185* 
■e.  Castle,    80    Me.    119,   5 
New  Eng.  Rep.  857.. 

75^  102^ 

V.  Kiel,  13  Colo.  378, 6  L.  R. 

A.  254 822 

V.  Lewis,  Cheves,  L.  259..    531*^ 


Jackson  v.  Morris.  1  Denio,  199.    601* 
V.  Rutland  &  B.  R.  Co.  25 

Vt.  150 241» 

V.  St.  Louis,  I.  M.  &  S.  R. 

Co.  74  Mo.  526 636* 

I).  Smifhson,    15    Mees.   «& 

W.  561,  563.  

605'^  619'  3  5,  620<^ 

V.  Trullinger,  9  Or.  397...    158» 
.Jacksonville  v.  Lambert.  62  III. 

519 292'^  \  322',  326» 

Jacksonville  &  S.  R.  Co.  v.  Kid- 
der, 21  111.  131 89* 

Jacksonville  St.   K.  Co.  r.  Chap- 
pell,  21  Fla.  175 362» 

Jacobs,  Re,  98  N.  Y.  98 152^  664* 

V.    Worrell,    15    Leg.   Int. 

139. 288" 

Jaffe  V.  Harleau,  56  N.  Y.  398..     61 

Jager  ».  Adams,  123  Mass.  26 103* 

Jamaica  Pond  Aqueduct  Corp.  v. 

Chandler,  9  Allen.  163   161' 
V.  Chandler,  9  Allen,  165- .    158* 
V.  Chandler,  121  Mass.  3..    579' 
James  ».  Plants,  4  Ad.  &  El.  749 

574*5 

Janes  «.  Jenkins,  34  Md.  1 2. 

166',  171«'.  172* 

Jansen  v.  Atchison,  16  Kan.  358 

103',  1141 

Janson  v.  Brown,  1  Camp.  41 626* 

Jaques  v.  National    E.xhil)it    Co. 

15  Abb.  N.  C.  250_...      74« 
Jefferies  v.  Buncombe,  11  East, 

226 15 

JefEeris  v.  East  Omaha  Land  Co. 
134  U.  S.  178,  33  L. 

ed.  872 395' 

V.  Philadelphia,  W.  &  B. 
R.  Co.  3  Houst.  447. 

648^  667',  609* 

V.  Philadelphia.W.  &B.  R. 

Co.  3  Houst.  448 664' 

Jeffers  v.  Jefifers,  107  N.  Y.  650, 

9  Cent.  Rep.  875 

281'^  2973,  358' 

Jeffersonville  v.  The  John  Shall- 

cross.  35  Ind.  19 487* 

Jeffries  v.  Hargi,s,  50  Ark.  65 269' 

Jenkins  v.  Tinner,  1  Ld.  Raym. 

109 604*,  606*,  619* 

Jennings,  Ex  parte,  6  Cow.  518. 

■ 403',  40.5',  452* 

Ex  parte,  6  Cow.  527,  543.   463* 
Ex    parte,    6     Cow.    537, 

note 397* 

V.  Pennsylvania  R.  Co.  93 

Pa.  337 648* 

V.  Van  Schaick,  13  Daly, 

438 73" 


liv 


.TABLE    OP    CASES. 


Jennings  v.  Van  Schaick,  108  N. 
Y.530,11  Cent.Rep.317 
52^  53' ^  lot*-,  lie 

Jennison  v.  Walker,  11  Gray,  423 

580^* 

Jerome  v.  Ross,  7  Johns.  Cb.  322, 

2  N.  Y.  Ch.  L.  ed.  308     77« 
Jersey  City  v.  Central  R.  Co.  40 

N.  J.  Eq.  417,  4  Cent. 

Rep.  327 70^ 

Jersey  City  &  B.  R.  Co.  v.  Jersey 

Citv  &  H.    Horse  R. 

Co."  20  N.  J.  Eq.  61.. 

248-,  2512 

Jessen  v.  Swei,eert,  66  Cal.  182. 49^,  51- 
Jetter  v.  New  York  &  H.  R.  Co. 

3  Abb.  App.  Dec.  458 
127S  6623 

Jewett  V.  Jewett,  16  Barb.  150.- 

571',  5802 

Jochem  v.  Robinson.  66  Wis.  638, 
1   L.    R.   A.  178,  and 

notes lOl''",  108%  124^ 

V.  Robinson,  72  Wis.  199..   363^ 
John  Hancock  M.  L.  Ins.  Co.  v. 
Patterson,  103  Ind.  582, 
'     1  West.  Rep.  124.. 172,  418« 
Johnson  v.  Barber,  10  111.  425....    044» 
V.  Belden,  47  N.  Y.  130...   566» 
V.  Boston,  130  Mass.  452..   453'^ 
V.  Conant,  64  N.  H.  109,  3 

NewEna:.  Rep.  162..   571 
■».  Holyoke,  105  Mass.  80..   637' 

V.  Jordan,  2  Met.  234 

167',  169^  3552,  419^ 

v.  Jordan,  2  Met.   239,  37 

Am.  Dec.  85 410',  455^ 

«.  Knapp,  150  Mass.  261.. 

244«,  263* 

V.  Lewis,  47  Ark.  66 235' 

V.  McConnell.  80  Cal.  545. 

i ose^'' 

V.  McMillan, 69" Mich.  36,  13 

West.  Rep.  740 61- 

V.  Patterson,  14  Conn.  1.. 

17',  628' 

V.  Spear,  76  Mich.  139....     19^ 

«.  Wing,  3  Mich.  163 592^ 

Johnston  v.  District  of  Columbia, 

118U.S.19,  30L.ed.75  328s 
V.  Jones,  66  U.  S.  1  Bla.k. 
209,  223,  17  L.  ed. 117, 

121 - 3975  ■> 

Johnstown  Cheese  Mfg.  Co.  v. 
Veghte,  69  N.  Y.  16.. 

280',  281' 

Jolly  V.  Des   Moines  N.  W.  R. 

Co.   72  Iowa,  759 91" 

W.Terre  Haute  Draw  Bridge 

Co.  6  McLean,  237-. .3765  « 


Jones  V.  Adams,  17  Nev.  84 442« 

V.  Bird,  5  Barn.  &  Aid.  837  89' 
V.  Clouser,  114  Ind.  387,  14 

West.  Rep.  286 602' 

V.  Festiniog  R.  Co.  L.  R. 

3  Q.  B.  733. 2708 

V.  Housatonic   R.  Co.    107 

Mass.  261 2472 

V.  Johnson,  2  Ala.  746.-..  48P 
V.  Johnston,   59   U.   S.   18 

How.    150,  15  L.    ed. 

320 397',  399%  4012 

V.  Keith,  37  Tex.  394 90' 

V.  New  Haven,  34  Conn.  1 

1233,  3202,  345' 

«.  New  Haven,  34  Conn.  1, 

13. 3413 

V.  Nichols,  46  Ark.  207,  55 

Am.  Rep.  575 118,  598' 

V.  Owen,  24  L.   T.  N.   S. 

587 6O72,  615» 

V.  Percival,  5  Pick.  485...  189' 
1).  Pettibone,  2  Wis.  308..   4632 

V.  Powell,  Hutt.  136 131' 

V.  Purcell.  36  Ohio  St.  396  3892 
V.  Robertson,  116  111.  543, 

3  West.  Rep.  581 2582 

V.  Sherwood,  37  Conn.  466  626* 
«.  Soulard,65U.  S.  24How. 

41,  16  L.  ed.  604 

389*,  394« ',  397',  399«,  4012 

D.  State,  68  Md.  613 541^ 

V.  Weitershausen,  181  Pa. 

62 547" 

V.  Western   Vt.    R.  Co.  27 

Vt.  399 273» 

V.  Williams,  11  Mees.  &  W. 

176 6482 

1).  Witherspoon,  7  Jones,  L. 

555 - 5963 

Jonesboro  &  F.    Turnp.    Co.   v. 

Baldwin,  57  Ind.  86..  1262 
Jordan  v.  Foster,  11  Ark.  141...  634^ 
V.   St.    Paul,  M.  &  M.   R. 

Co.  (Minn.)  6  L.  R.  A. 

573 295',  297* 

V.  Wyatt,  4  Gratt.  151 647- 

Joslin  V.  Soues  (Iowa)  45  N.  W. 

Rep.  917 257',  258' 

Joy  V.  Bilzer,  77  Iowa,  73,  3  L. 

R.  A.  184 634» 

V.  Boston  Pennv  Sav.  Bank, 

115  Mass.  60- 209%  2232 

Joyce  V.  Martin,  15  R.  I.  558,  4 

New  Eng.  Rep.  797... 

44',  51',  53' 

Judd  V.  Cushing,  22  Abb.  N.  C. 

358,  375 231* 

V.  Fargo,  107  Mass.  264...  1252 
Judge  V.  Cox,  1  Stark.  227.--6l9%620' 


TABLE   OF   CASES. 


Iv 


Judge  V.  Cox,  1  Stark.  285.. COS'  \  5S6« 
V.  Meriden,  88  Coun.  90.-.   330^ 
Julia  Bldg.  Asso.  v.  Bell  Telepb. 
Co.  88  Mo.  258,  5  West. 

Rep.  357 97'  » 

Julien  V.  Woodsmall,  82  Ind.  566    265 
v.  Woodsmall,  82  Ind.   568   158" 
June  V.  Purcell,  36  Ohio  St.  396.   412-* 
Juniata,  The,  93  U.  S.  337,  23  L. 

ed.  930 369'  - 

Justice  V.  Logansport,  101  Ind.  326  334;'' 

Jutte  V.  Hughes,  67  K  Y.  267-..   270' 

V.  Hughe-s,  67  N.  Y.  268.. 

.: 292«,  326^ 


K. 


Kable  v.  Hobein,  30  Mo.  App.  472 

642^  644',  645",  661* 

Kalbfleisch  v.  Long  Island  R.  Co. 
102  N.  Y.  520,  3  Cent. 

Rep.    662 665* « 

Kalis  V.  Shattuck,  69  Cal.  593... 

. 41*,  49%  51- ^  62' 

Kane  v.  Bolton,  36  K  J.  Eq.  21.   577* 
V.  MetropolitanElev.  R.  Co. 
(Ct.  App.)  34  N.  Y.  S. 

R.  876,  883 359-^ 

V.  State,  70  Md.  546 54l« 

Kane  County  v.  Herrington,  50  111. 

232 184' 

Kankakee  &  S.  R.  Co.  v.  Horan, 

131  111.  288 467* 

Kansas  Cent.  R.  Co.  v.  Allen,  22 
Kan.  285,  31  Am.  Rep. 
190    ...240',  241',  265*,  597' 
V.  Fitzsimmons,  22  Kan.  687     29' 
V.  Fitzsimmons,     22    Kan. 

686,  31  Am.  Rep.  203.   585> 
Kansas  City,  F.  S.  &  G.  R.  Co.  v. 

Owen,  25  Kan.  420...   66U* 
Kansas  Pac.  R.  Co.  v.  Brady,  17 

Kan.    380 6^9* 

V.  Miller,  2  Colo.  442 155" 

Kapper  «.  Appel,  14  111.  App.  170       9' 
KaufEman®.  Griesemer,  26  Pa.  407  442^ 
V.  Griesemer,  26  Pa.  408..   297* 
V.  Griesemer,   26  Pa.   415, 

note 295*,  299^ 

Kavanagb  v.  Brooklyn,  38  Barb. 

2S2 3055 

Kean  v.  Ascb,  27  N.  J.  L.  57 577* 

V.  Stetson,  5  Pick.  492,  495 

.560',  564' 

Kearney  v.  London,  B.  &  S.  C.  R. 
Co.  L.  R.  5  Q.  B.  411, 

L.  R.  6Q.  B.  759 147^ 

T.  London,  B.  &;   S.  C.  R. 

Co.  L.  R.  6  Q.  B.  759-    156« 


Kearney  v.  London,  B.  &  S.  C.  R. 

Co.  L.  R.  6  Q.  B.  760.    105' 
Keates  v.  Earl  of  Cadogan,  10  C. 

B.  591. 61* 

Keating  d.  Korfbage,  88  Mo.  524, 

4  West.  Rep.  569 

184",  205'  5,  215',  2^^ 

Keeble®.  Hickerimrill,  11  Mod.  74, 
130,  3  Salk.  9,  Holt,  14, 

17,  19... 505 

«.  Hickerin gill,  11  East,  574    527 
Keefe  v.  Boston  &  A.  R.  Co.  142 
Mass.  251,  2  New  Eng. 

660' W 

V.  Milwaukee  &  St.  P.  R. 

Co.  21  Minn.  207 29' 

Keenan  v.  Cavanaugh,  44  Vt.  268  592" 
V.  Gutta  Percba  &  R.  Mfg. 

Co.  46  Hun,  544.. 617',  622' 
Keigbtlinger  v.  Egan,  65  III.  235 

605S  606'", 

617',   619^    620-,    630*,  631' 

Keiper  «.  Klein,  51  Ind.  316 180^ 

Keitb    V.    Brockton,    136    Mass. 

119 295' 

Kellinger  v.  Forty-Second  St.  &:  G. 
St.  F.'R.  Co  50  N.  Y. 

206 93* 

Kellogg  V.  Chicaffo  &  N.  W.  R. 

Co.  26^  Wis.  223 665' 

V.  Chicago  &  N.  W.  R.  Co. 

26  Wis.  224 652' 

V.  Chicago  &    N.    W.    R. 
Co.  26  Wis.  227,  7  Am. 

Rep.  71... 241' 

V.  Chicago  &  N.  W.  R.  Co. 

26  Wis.  280... 608' 

V.  Ely,  15  Ohio  St.  66 485' 

T.  Smith,  26  N.  Y.  18 242' 

Kelly  «.  Bennett  (Pa.)  7  L.  R.  A. 

120 15-,  26' 

■V.  Doody,  116  N.  Y.  575.. 

101^  115- 

V.  Dunning,  43  jST.  J.  Eq.  62, 

8  Cent.  Rep.  600 

163*5, 

168*,  169*,  186-,    235^  241^ 
V.   Meeks,   87  Mo.    396,   2 

West.  Rep.  507 ei'l^ 

«.  Southern   Minn.  R.  Co. 

28  Minn.  98 252' 

V.  Tllton,  2  Abb.  App.  Dec. 

495,  3  Keves,  263 

586'',  617-,  631\  6193 

Kelsey  v.  Purmau,  36  Iowa,  614.   262" 
Kemmish  v.  Ball,  30  Fed.  Rep. 

759.. 633' 

Kenison  «.  Arlington,  144  Mass. 
456,  4  New  Eng.  Rep. 
340. 456',  458» 


Ivi 


TABLE    OF    CASES. 


Kennedy  ».  Hannibal  &  St.  J.  R. 

Co.  63  Mo.  99 646 

V.  McCollam,  34  La.  Ann. 

568 235^ 

v.  New  York,  73  N.  Y.  365 

314^  569« 

V.  Ryall,  67  N.  Y.  379....   488* 
Kennison  v.  Beverly,  146   Mass. 

467,  6  New  Eng.  Rep. 

133-. 350 

Kennon  v.  Gilmer,  5  Mont.  257--    620^ 
V.  Gilmer,  131  U.  S.  22,  33 

L.  ed.  110 605^  610- 

Kensington  v.  Wood,  10 Pa.  93,  95  838' 
Kent  6-.  Waite,  10  Pick.  138....  184-' 
Kentucky  Cent.  R.  Co.  v.  Talbot, 

78   Ky.  621 147' 

V.  Tbnmas,  79  Ky.  160...   365'^ 
Kenyon  v.  Hart,  6  Best  &  S.  249  528 
V.    Indianaoolis,     1    Wils. 

(Ind.)  129---- 342' 

Keokuk  v.  Independent  Dist.  53 

Iowa,  353 114' 

Kerr  v.  O'Connor,  63  Pa.  341 

594'o,  626^   627* 

Kerwbaker  v.  Cleveland  &  C.  R. 

Co.  3  Ohio  St.  179--.  591 
Kesee  v.  Chicago  &  N.  W.  R.  Co. 

30  Iowa,  78 665*,  666' 

Ketchum  v.  Newman,  116  N.  Y. 

422 202^ 

Keteltas    v.    Penfold,    4    E.    D. 

Smith,  122 204*,  223 

Keyes  v.  Minneapolis  <fc  St.  L.  R. 

Co.  36  Minn.    290 636 

Keyport  &  M.  P.  Steamboat  Co. 

V.     Farmers     Transp. 

Co.  18  N.  J.  Eq.  13--  378* 
Keysar  v.  Covell,  62  N.  H.  283.  426^ 
Keystone  Bridge  Co.  v.  Summers, 

13  W.  Va.  485...-77^  247'^ 
Khron  v.  Brock,  144  Mass.  516, 

4  New  Eng.  Rep.  424 

426... 9--',  2V,  1043,  105,  105"' 

Kidd«.  Laird,  15  Cal.  161 445' 

V.  Laird,  15  Cal.  181 262-^ 

Kidder  v.  Dunstable,  7  Grav,  104 

365*,  366,  367,  656' 

Kieffer  v.  Imhoff,  26  Pa.  438 

164',166i,167M72-,573^  574^ 

Kier«.  Peterson,  41  Pa.  357 80'^ 

Kiernan  v.  Jersey  Citv,  50  N.  J. 

L.  246,  11  "Cent.  Rep. 

551  332*  ^ 

Kies  V.  Erie  (Pa!)"  26"W.  K  C.'  Vl'2 

334S  3353 

Kightlinger  v.  Egan,  75  111.  141..  586« 
Kilburn  v.  Adams,  7  Met.  33....  427" 
Kiley  v.  Kansas  City,  87  Mo.  103, 

2  West.  Rep.  201.3103*.  311^ 


Kilgour  V.  Ashcom,  5  Hs.r.  &  J. 

82 175' 

Killion».  Power,  51  Pa.  429 256^ 

King  V.  American  Transp.  Co.  1 

Flipp.  1 667* 

V.  Kline,  6  Pa.  318.. 627** 

V.  McDermott,  2  Phila.  175  613' 
V.  Morris  &  E.  R.    Co.  18 

N.  J.  Eq.  397 35* 

King  v.  Murphy,  140  Mass.  254,  1 

New  Eng.  Rep.  434.. 

571',  576*,  577'^  578^ 

V.  Sheffield,  2  T.  R.  106..     68* 
V.  Thompson,  87  Pa.  365..    129'' 
Kings    County    F.    Ins.    Co.    v. 

Stevens,  101 N.  Y.  411, 

2  Cent.  Rep.  430 174* 

Kingsland  v.  Tucker,  115  N.  Y. 

574 23V 

Kingsley  v.  Johnson,  49  Conn.  462  635* 
Kingston  v.  Horner,  1  Cowp.  102, 

108.. 178 

Kinnaird».  Standard  Oil  Co.(Ky.) 

7L.  R.  A.  451....:.. 

- r\  8\  155, 

271',  274,  276',  278',  288^ 
Kinsley  ».  Mor.se,  40  Kan.  588..  127' 
Kirby  «.  Bovlston  Market  Asso. 

14"^  Gray,  249 

41*,  107*,  114',  1483' 

Kirkpatrick  v.  Brown,  59  Ga  450 

184%  577«^ 

V.   Peshine,   24  N.  J.   Eq. 

206. _ 2291 

Kirkwood  v.  Newburg,  45  Hun, 

323 464» 

Kirschmer  ».  Western  &  A.  R.  Co. 

67  Ga.  760 236"" 

Kirst  V.  Milwaukee,  L.  S.  &  W. 

R.  Co.  46  Wis.  489..  147* 
Kistner  ».  Indianapolis,  100  Ind. 

210 334* 

Kitteringham  «.  Sioux  Citv  &  P. 

R.  Co.  62  Iowa,  285..  139^ 
Kittle  t\  Fremont,  1  Neb.  329...  79' 
Kittredge  v.  Elliott,  16  N.  H.  77 

6i7^  619'' 

®.  Elliott,  16  N.  H.  82...  605''  » 
Klander  v.  McGrath,  35  Pa.  128  233" 
Klein  «.  Gehrung,  25  Tex.  Supp. 

232. 180* 

Knapp  V.  Warner,  57  N.  Y.  688.     88' 

Knauss  v.  Brua,  107  Pa.  85 49'.  61 

Knickerbocker  Ice  Co.  ®.  Schultz. 

116  N.  Y.  382. 385^ 

Knight  «.  Abert,  6  Pa.  472 

23',  25-,  263,  27',  150* 

V.  Heaton,  22  Vt.  480 580^  * 

V.  New  Enaland   Worsted 

Co.  2   Cush.  271 163* 


TABLE    OF    CASES. 


Ivii 


Knorr  v.  Wagoner,  IG  Ind.  414..  600>  * 
Knox  V.  Cbaloner,  42  Me.  150 

..404^  550'3 

V.  New  York,  o4  Barb.  405, 

38How.Pr.  67 247^ 

T.  Tucker,  48  Me.  373 593^ 

Knoxville  v.  Bell,  12  Lea,  157... 

342>,  343-' 

Koupfle  V.  Knickerbocker  Ice  Co. 

84  N.  Y.  488. 103' 

Kobs    V.    Minneapolis,  22  Minn. 

159  .   297* 

Kokomoc.  Mahan,"i00  Ynd''242     70' 

Koney  «.  Ward,  2  Daly,  295 617* 

Koons  V.  St.  Louis  &  I.  M.  R.  Co. 

65  Mo.  592 29' 

Koopman  v.  Blodgett,  70  Mich. 

610,  14  West.  Rep.  909  546- 
Kornegay  v.  White,  10  Ala.  255  635 
Kosmak  v.  New  York,  117  N.  Y. 

361 333'^ 

Kramer  v.  Carter,  136  Mass.  504.  160* 
Krauz  v.  Baltimore,  64  Md.  491, 

2  Cent.  Rep.  629 33l« 

Kraut  V.  Crawford,  18  Iowa.  549  396' 
Krehl  v.  Burrill,  L.  R.  7  Ch.  Div. 

551  577® 

Kripp  ».  Curtis^?!  Cal.'62V.V.'.Vl733-» 
Krippuer  v.  Biebl,  28  Minn.  139..  645'^ 
Kueckenti.  Voltz,  110  111.  265..  184'^ 
Kuhn  V.  Jewell,  32  N.  J.  Eq.  647  654' 
Kyle  V.  Texas  &   N.  O.   R.  Co. 

(Tex)  4  L.  R.  A.  276, 

note. 18r 

Kyne  v.  Wilmington  &  N.  R.  Co. 

(Del.)   13    Cent.    Rep. 

391 363=* 

Kynoch  v.  The  S.  C.  Ives,  Newb. 

205 .-370*,  371* 


Lackland  «. North  Missouri  R.  Co. 

31  Mo.  180 82' 

Laclaire  x.  Davenport,  13  Iowa, 

210   152^ 

Lacour^.  Mayor,  3  Duer,  406. ..  311* 
Lacy  V.  Arnett,  33  Pa.  169 

1673,  182',  419- 

Ladd  V.  Boston  (Mass.)  24  N.  E. 

Rep.  858 181' 

V.  Chotard,  1  3Iinor,  366..  486'' 
Ladies   Seamen's  Friend  Soc.  v. 

Halstead,  58  Conn.  144 

384',  395*,  559« 

Lafayette  v.  Holland,  18  La.  286.  396' 
V.  Timberlake,  88  Ind.  330.  310^ 
Lafayette,  .M .  &  B.  R.  Co.  v.  Mur- 

dock,  68  Ind.  137 90' 


Laflin  &R.  Powder  Co.r.Tearney, 

131  111.  322,  7  L.  R.  A. 

262 10«,  650* 

Laherty  v.  Hogan,  13  Daly.  533.   621^ 
Lahr  v.  Metropolitan  Elevated  R. 

Co.    104   N.  Y.  268,  6 

Cent.  Rep.  371  ..84-,91^'fr 
Lakeman  «.Burnham,  7  Gray,  437 

495',  536' 

Lake  Shore  &  M.  S.  R.  Co.  v.  Pin- 
chin,  112  Ind.  592....    128" 
V.  Rosenzweitr.  113  Pa.  519, 

4   Cent.  Rep.  712 657*^ 

Lakeside  Ditch  Co.  v.    Crane,  80 

Cal.  181 448^  451^ 

Lake  View  v.  LeBahn,  120  111.  92, 

6  West.  Rep.  786 76* 

«.  Rose  Hill  Cemetery  Co. 

70  111.  191 '...-.   456' 

Lamar  v.   Marshall    County    Ct. 

Comrs.  21  Ala.  772...   484^ 
Lamb  v.  Reclamation  Dist.    No. 

108,  73  Cal.  125 391^ 

V.  Rickets,  11  Ohio,  311...  399"> 
Lambert  v.  Bessey,  Sir  T,  Raym. 

421 270',  277^ 

Lammers  ®.  Nissen,  4  Neb.  245 . .    397'* 
Lammott  «.  Ewers,  106  Ind.  310, 

4  West.  Rep.  553 

..167^  4193,  420* 

Lampman  v.  J\Iilks,  21  N.  Y.  505 
164', 

166',  168*,  171',  186,  186' 
V.  Milks,  21  N.  Y.  506. ...  174-^ 
V.  Milks,  21  N.  Y.  507.... 

175',205\  217'.  241* 

Lamprey  v.  Nelson,  24  Minn.  304  405' 
Lancaster  v.  Conn.  Mut.    L.   Ins. 

Co.    92    Mo.    460,    10 

West.  Rep.  409.... 39',  233* 
Lancaster  Ave.  Imp.  Co.t'.Rhoads, 

116  Pa.  377,   8    Cent. 

Rep.  214...- 323* 

Lance's  App.  55  Pa.  25 91®- 

Lancey  v.  Clifford,  54  Me.  487,  92 

Am.  Dec.  561... 

404'',  411,  413* 

Landru®.  Lund,  38  Minn.  .538...    108^ 
Lane^J.  Atlantic  Works,  111  Mass. 

136,  139,  141 

367',  6123,   6.56* 

Langan  v.  Atchison,  35  Kan.  318   102* 
Langdon  t.  Doud,  10  Allen,  433.    183* 
V.  New  York.  93  N.  Y.  129     SS*- 
Langmaid  v.  Higffins,  129   Mass. 

353.  358 -   255' 

Lansing  v.  Smith.  8  Cow.  146,  4 

Y>"end.  9.75*,  80',  469*,  475^ 
V.  Stone.  37  Barb.  15. 

641'  ^  649* 


ivui 


TABLE   OF   CASES. 


Lansing  v.  Toolan,  37  Mich.  152..  330' 
V.  Wiswall,  5  Denio,  213,  5 

How.  Pr.  77... 

.--.75^  80^  234^  469*,  475^ 
Lapere«.  Luckey,  23  Kan.  534. .  180- 
Lapham  V.  Curtis,  5  Yt.  371 

..272',  431',  432',  440',  546^ 
Laredo  v.  Martin,  52  Tex.  54S._.  480^ 
Larkin  v.  Saginaw  Co.  11  Mich. 

88 339^ 

Larmore  v.  Crown  Point  Iron  Co. 

101  N.  Y.  391,  2  Cent. 

Eep.  409 20%  24^ 

Larrabee  t).PeabodY,128  Mass.  561  345" 
Larue  ».   Farren  Hotel  Co.    116 

Mass.  67 53-,  62",  68- 

Lasala  v.  Hoi  brook,  4  Paige,  169, 

3  N.  Y.  Ch.  L.  ed.  390, 

25  Am.  Dec.  524 

38',  196',  199',  3002 

Lattimer  v.  Livermore,  72  N.  Y. 

174 577« 

Lattimore  v.  Davis,  14  La.  161...  295'' 
Laughter  v.  Pointer,  5  Barn.  &  C. 

547,  560 149^ 

Laverone «.    Manoianti.   41   Cal. 

138,  10'"Am.  Rep.  269. 

587',  6073.  617'  619' 

Lavery  v.  Hannigan,  20  Jones  & 

S.  463 99' 

Lawler  v.  Baring  Boom   Co.    56 

Me.  443 404« 

Lawrence  v.   Fairhaven,  5  Gray, 

110 1-   474' 

V.  Great  Northern  R.  Co. 

16Q.  B.  643.. SO' 

^.  Obee,  3  Camp.  514 571' 

V.  Whitney,  115  X.  Y.  410, 

5L.  R.  A.  417... -420%  459« 
Lawsone.Menasha  Wooden-Ware 

Co.  59  Wis.  393. 477' 

Lawtoa  v.  Comer,  7  L.  R.  A.  55, 

40  Fed.  Rep.  480.-372',  408^ 

t\  Giles,  90  N.  C.  374 648^ 

«.  Rivers,  2  McCord,  L.445, 

13  Am.  Dec.  741,  746, 

note ...167',168« 

«.  Steele.  119  N.  Y.  226,  7 

L.R.  A.  134 

..-495%  .531-,  533.  535',  541« 
V.  Ward,  1  Ld.  Raym.  75..  238- 
Leader  v.  Mo.xon,  3  Wilson,  461.  89^ 
Leake  Co.  Suprs.  v.  McFadden,57 

Miss.  618 480^ 

Learner.  Bray,  3  East,   595 607 

Learned  v.    Tansreman,    65   Cal. 

334..-"... 443'" 

Leary  v.  Cleveland,  C.  C.  &  I.  R. 

Co.  78  lud.  323 24' 

V.  Woodruff,  4  Hun,  99...   567« 


Leavenworth  v.  Casey,  McCahon 

(Kan.)   124 305%  306' 

Leavenworth,  T.  &  S.  W.  R.  Co. 

V.  Forbes,  37  Kan.  448  599* 
Leavitt«.  Fletcher,  10  Allen,  119  QV 
LeBarron    v.    East  Boston  Ferry 

Co.  11  Allen,  312.. 138,  4885 
Leconfield  v.   Lonsdale,  L.  R.  3 

C.  P.  657 5495 

Ledyard  v.  Ten  Eyek,  36  Barb. 

102 512' 

V.  Ten  Eyck,  36  Barb.  125.   378-' 
Lee  V.  Minneapolis,  22  Minn.  13.   298' 
V.  Riley,  34  L.  J.  N.  S.  C. 

P.  212. 591%  604' 

V.  Smith.  42  Ohio  St.  4.58.   663^ 
1).  Vacuum  Oil  Co.  54  Hun, 

156 35* 

Leemfield  «.  Lonsdale,  L.  R.  5  C. 

P.  657 53r 

Le  Fevre  v.  Le  Fevre,  4  Serg.  & 

R.  241 183« 

Le  Forest  v.  Tolman,  117  Mass. 

109 5866 

V.  Tolman,  117  Mass.  110. 

607^  610= 

Legg  V.  Horn,  45  Conn.  415.-182',  184* 
Lehi  Irrigation   Co.  v.  Moyle,  4 

Utah,  327. 445' 

Lehigh  &  W.  B.  Coal  Co.  v.  Lear 

(Pa.)  8  Cent.  Rep.  107  361" 
Lehigh  Valley  R.  Co.  »).  Greiner, 

113  Pa.   600,  4  Cent. 

Rep.  898 364' 

V.  Lazarus,  28  Pa.  203 664' 

V.  McKeen,  90  Pa.  122....  654' 
Lehn  v.  San  Francisco,  66  Cal.  76  292" 
Leigh  V.  Westervelt,  2  Duer,  618, 

622 35%  110' 

Leisse  v.  St.  Louis  &  I.   M.   R. 

Co.  2  Mo.  App.  105...  90« 
Leisy  v.  Hardin,  135  U.  S.  100, 

120,  34  L.  ed.  128,  136  464' 
Lembeck  v.  ISTye,  47  Ohio  St. , 

8  L.  R.  A.  578.. 

393%  408%  41P 

Lemon  v.  Newton,  134  Mass.  476  353' 
V.  Newton,  134  Mass.  479.    334^ 
Lendeman  v.  Lindsay,  69  Pa.  100  580" 
Lent  V.  New  York  C.  &  H.  R.  R. 

Co.  120  N.  Y.  467.-..  364' 
Leonard  v.  Baton  Rouge,  39  La. 

Ann.  275 387%  391^3 

t).  Hart  (N.J.)  1  Cent.  Rep. 

673 - .238',  263" 

V.  Leonard,  2  Allen,  543.. 

167»,  5748 

V.  Storer,  115  Mass.  86  .-- 

47,  62'%  63' 

®.  White,  7  Mass.  8 419* 


TABLE    OF    CASES. 


lix 


Leonard  v.  Wilkins,  9  Johns.  233  628^ 
Letton  V.  Goodden,  L.  II.  1  Eq. 

123 480'» 

Levet  V.    Lapeyrollerie,    39    La. 

Ann.  210 244«,  259' 

Levy  V.  McCarlee,  31  U.  S.  6  Pet. 

102,  8  L.  ed.  334 3' 

Xewenthal  v.  New  York,  61  Barb. 

511,  5  Lans.  532 

316,  3265,330' 

Lewis  V.  Coffee   County,  77  Ala. 

190 4033.  407' 

V.  Gainesville,  7  Ala.  85...   486* 
V.  Keeling,  1  Jones,  L.  299 

....50P,  540' 

V.  Stein,  16  Ala.  214 291* 

Xewiston  t.  Proctor,  27  111.  418- .    580^ 
Lewiston  Turnp.  Co.  v.  Shasta  & 

W.  Wagon   Road   Co. 

41  Cal.  562 ...75*,  475^ 

Lexington  &  O.  R.  Co.  i\  Apple- 
gate,  8  Dana,  289,  33 

Am.  Dec.  497,513....    373^ 

V.  Applegate,  8  Dana,  294.  82'  « 

V.  Appleijate.  8  Dana,  299.     77* 

Libby  v.  Johnson,  37  Minn.  220.    557^ 

Licking  Rolling  Mill  Co.t;.  Fischer 

(Ky.)  10  Ky.  L.  Rep. 

763,  11  S.  W.  Rep.  305  156'" 
Liggins  V.  Inge,  7  Bing.  682.187^  578*« 
Lilley  v.  Fletcher,  81  Ala.  234...  556'^ 
Xincoln  v.  Boston,  148  Mass.  578, 

3  L.  R.  A.  257 149* 

V.  Davis,  53  Mich.  375.... 

503^  514,  517,  518'.  522,  529 
Lindsay  v.    Cusimano,    12    Fed. 

Rep.  506.. 1895 

Line  v.  Taylor,  3  Fost.  &  F.  731.   620^ 
Linnehan  v.  Sampson,  126  Mass. 

506 .52,  608 

Linsey  ».  Bushnell,  15  Conn.  225  250' 
Linthicum  v.  Coan,  64  Md.  439, 

2  Cent.  Rep.  623....398«  ^ 'o 
Lipe  V.  Blackwelder,  25  111.  App. 

119 6283 

Lipes  V.  Hand,  104  Ind.  503,  2 

West.  Rep.  314 325^ 

Lippencott  v.  Allander,  27  Iowa, 

460... 486 

Lippincott  v.    Harvey  (Md.)    19 

Atl.  Rep.  1041 162' 

V.  Lasher,  44  N.J.  Eq.  120, 

12  Cent.  Rep.  238.-74*,  247- 

Little  V.  Lathrop,  5  Me.  356 59P 

V.  Lathrop,  5  Me.  357.. 592^,  593^ 

V.  McGuire,  38  Iowa,  560.    595^ 

Littlefield  v.  Littlefield,  28  Me.  180  378' 

V.  Maxwell,  31  Me.  134.393',  560' 

Littler  v.  Lincoln,  106  111.  353 580^ 

Littleton®.  Cole,  5  Mod.  181 647* 


Little  Pittsl)urg  Con.  Min.  Co.  v. 
Little  Chief  Con.  Min. 

Co.  11  Colo.  223 269' 

Little   Rock  v.   Willis,   27  Ark. 

572... 311" 

Little  Rock   &  Ft.  S.  R.  Co.  v. 

Chapman,  39  Ark.  463  435* 
V.  Henson,  39  Ark.  413...    147' 
V.  Holland,  40  Ark.  336...    147' 
Livermorew.  Batchelder,141  Mass. 
179,  1  New  Eng.  Rep. 

749 626* 

V.  Camden,  29  N.  J.  L.  415, 

31  N.  J.  L.  507 3393 

Liverpool  Wharf  Co.  v.  Prescott, 

7  Allen,  494 183* 

Livett  V.  Wilson,  3  Bing.  ilo 179 

Livingston  v.  Adams,  8  Cow.  175 

...272.  272',  432',  440,  440' 
1).  Heerman,  9  Mart.  O.  S. 

656 397' 

V.  McDonald,  21  Iowa,  160 

295',  297*,  299= 

V.  Mayor,  8  Wend.  98 184'' 

Lloyd  V.  Jones,  6   C.  B.  81.  500^ 

V.Lloyd,  60  Vt.  288,  6  New 

Eng.  Rep,  250 636* 

V.  New  York,  5  N.  Y.  369, 

55  Am.  Dec.  347 

310*,  311*,  331« 

Locke  V.  First  Div.  St.  Paul  &  P. 

R.  Co.  15  Minn.  350..   591^ 
Lockhart«.  Geir,  54  Wis.  133-..    182' 
Locks  &  Canals  v.  Lowell,  7  Gray, 
223 

292',  321^'322'] '3"2'6"*.327',352 
v.  Nashua  &  L.  R.  Co.  104 

Mass.  11 158'',  241' 

Lockwood  «.  New  York  &  N.  H. 

R.  Co.  37  Conn.  387..   397'^ 
V.  Wood,  6  Q.  B.  50,  64...    189- 

Lodie  ?J.  Arnold,  2  Salk.  458 534' 

Loftus  V.  Union  Ferry  Co.  84  N. 

Y.  455 138.  138',  488^'' 

Logan  i\  Gedney,  38  Cal.  579 592' 

V.  Stoirsdale,  123  Ind.  372, 

8^L.  R.  A.  58 176« 

Logansport  v.  Dicks,  70  Ind.  65, 

36  Am.  Rep.  166 264* 

7).  Justice,  74  Ind.  378 331^ 

V.  Wright,  25  Ind.  512... 

..3283,  3292,  330' 

V.  Wright,  25  Ind.  513 312 

Logue  V.  Link,  4  E.  D.  Smitii,  63 

586«.  617'.  63P 

Lombard  v.  Cheever;  8  111.  473..    485* 
Lonergan  v.  Lafayette  St.  R.  Co. 
(Ind.)  4  Harvard   Law 

Rev.  260 2513 

Longv.  Gill,  80  Ala.  408 239',  263* 


Ix 


TABLE    OF    CASES. 


Longabaugh  v.  Virginia  &  T.  R. 

Co.  9Nev.  271 648-» 

Lonsdale  v.  Rigg,  11  Exch.  654..   543' 
Loomis  V.  Terrv,  17  Wend.  496-. 

--.17'.  586«,  616\  619^  631" 
V.  Terry,  17  Wend.  500..-   627^ 
Lord  V.  Carbon  Iron  Mfg.  Co.  42 
N.  J.  Eq.l57,  4  Cent. 

Rep.  8.J3.- 281'^  295^ 

V.  Meadviile  Water  Co.  135 

Pa.  122,  8  L.  R.  A.  202  454^ 
T.  Wormwood,  29  Me.  282 

- 5913,  5997 

Lorie  v.  North  Chicago  City  R. 

Co.  32  Fed.  Rep.  27.-  76' 
Lorillard  v.  Monroe,  11  N.  Y.  392  335" 
Lorman  v.  Benson,  8  Mich.  18-.. 

-.. 3773. 

405',    443^    517',  556',  563' 

1).  Benson.  8  Mich.  19 520 

Losee  v.  Buchanan,  51  N.  Y.  476 

14,  271,  271^ 

Lottman  v.  Barnett,  62  Mo.  162..    233* 
Louisiana Mut.  Ins.  Co.  v.  Tweed, 
74  U.  S.  7  Wall.  44,  19 

L.  ed.  65 653,  659' 

Louisville  &  F.  R.  Co.  v.  Brown, 

17B.  Mon.  763 73'' 

Louisville  &  N.  R.  Co.  v.  Hall,  87 

Ala.  708... ..145^3633 

v.  McCoy,  81  Ky.  403 362' 

V.  Schmidt,  81  Ind.  264...    129'' 
Louisville  &,  P.  Canal  Co.  v.  Mur- 
phy, 9  Bush,  533 440^ 

Louisville  Bagging  Mfg.  Co.  v. 
Central  P.  R.  Co.  4 
Harvard     Law      Rev. 

260... 2513 

Louisville  Citv  R.  Co.  «.  Weams, 

80Kv.  420 133',  363' 

Louisville,  N.  A.  &  C.  R.  Co.  v. 

Beck,  119  Ind.  124-..    183' 

V.  Ehlert,  87  Ind.  339 653' 

V.  Falvey,  104  Ind.   409,  1 

West.  Rep.  868 6573 

V.  Hart,  119  Ind.  273,  4  L. 

R.  A.  549 665'' 

V.  Krinning,  87  Ind.  351..    654' 
V.  Lucas,  119  Ind.  583,  6  L. 

R.  A.  193 6603 

0.  Nitsche   (Ind.)  9  L.    R. 

A.  750-643',  6443,  655',  657- •» 
V.  Phillips,  112  Ind.  59,  11 

West.  Rep.  119 253' 

V.  Richardson,   66  Ind.  43, 

32  Am.  Rep.  94 669' 

V.  Sandford,  117  Ind.  265.    145* 

».  Smith,  91   Ind.  119 252= 

V.  Snider,   117  Ind.  435,   3 

L.  R.  A.  434 6573 


Louisville,  N.  A.  &  C.  R.  Co.  v. 

Wood,  113    Ind.  544- 

556,  12  West.  Rep.  303  656» 
Lovejoy  1;.  Lovett,  124  Mass.  270  163* 
Loveiand  v.  Gardner,  79  Cal.  317, 

4  L.  R.  A.  395 123',  597" 

Lovell  v.  Smith,  3  C.  B.  N.  8.  120  578^ 
Lovingston    v.  St.  Clair  County, 

64  III.  .56 399'° 

Low  V.  Grand   Trunk  R.  Co.  72 

Me.  313 - 5683 

D.  Knowlton.  26  Me.  128.. 

75S  4753 

®.  Streeter  (N.  H.)  9  L.  R. 

A.  271... 161', 1623 

Lowe  V.  Miller,  3  Gratt.  205 2013 

Lowell  V.  Boston,  111  Mass.  464, 

469.... 455- 

V.  Boston  &  L.  R.  Corp.  23 

Pick.  24... 114' 

V.  Short,  4  Cush.  275 114' 

V.  Spaulding,  4  Cush.  277. 

41",  49*,  62".  68*,  114',  148^ 
V.  Watertown      Twp.      58 

Mich.  568 128'' 

Lowery  v.  Manhattan  R.  Co.  99 

N.  Y.  158 1071,  651 

Lowney  ».    New  Brunswick   R. 

Co.  78  Me.  479,  3  New 

Eng.  Rep.  268 6483 

Lucas  V.  Coulter,  104  Ind.  81 61* 

Luce  V.  Carley,  24  Wend.  451...  427">- 
Lumparter  «.  Wallbaum,  45  111. 

444 - 103*^ 

Lund  V.  New  Bedford,  121  Mass. 

286 4583- 

V.  New  Bedford,  121  Mass. 

289.- 455^ 

9).  Tyngsboro,  11  Cush.  563   659' 
Luther    v.    Winnisimmet    Co.   9 

Cush.  171 ... .  1473,  296«,  3003 

Luttrel's   Case,  4  Coke,  87a 255« 

Lux  V.  Haggin,  69  Cal.  255 

- 3553,  4428,  4572 

Lybe's  App.  106  Pa.  626... 283' 

Lybe's  App.  106  Pa.  634.. 284 

Lyke  v.  Van  Leuven,  4  Denio,  127 

591''«,  6041^ 

Lyman  v.  Boston  &  W.  R.  Corp. 

4  Cush.  288 654*- 

V.  Edgerton,  29  Vt.  305. ..  835'«- 
Lyme  v.   Henley,  3  Barn.  &  Ad. 

77 568-' 

Lynch  v.  Allen,  4  Dev.  &  B.  L. 

62,  32  Am.  Dec.  671..    3983 
V.  McNally,    7    Daly,  128, 

130,  73N.Y.  347.-586«, 

619'  3.   620^  630*,  6313,  632^ 
V.  New  York,  76  N.  Y.  60 

302*,  305\  317,  326^* 


TABLE    OF    CASES. 


IXl 


Lynch  «.  Nurdin,  5  Jur.  707 3G7' 

V.  Nurdin,  1  Q.  B.  38  ....  G07-« 
Xivndsay  v.  Ce)uuecticut  &  P.  R. 

R.  Co.  27  Vt.  C4:j....  147' 
Lynn  v.  Nahaut,  113  Mass.  433, 

44,s  ... 341> 

V.  Turner,  Cowp.  86,  Loll't. 

536 3748 

Lyon  V.  McDonald,  78  Tex.  71,  9 

L.  R.  A.  295 180' 

Lyons  v.  Brookliue,  119  Mass.  491  125' 
V.  Merrick,  105  Mass.  71.. 

59^',  594",  608,  622^ 

V.  Merrick,  105  Mass.  77..    604- 
V.  Rosenthal,  11  Hun,  46. . 

...1463,  147- 

M. 

McAdams  ■».  Sutton,  24  Ohio  St. 

333.. 594'^626= 

JVIcAlpin  V.  Powell,  70  N.  Y.  126 

23^  26-,  29- 

JVIcAadrews  v.  Collerd,  42  N.  J. 

L.  189- ---     362 

McArthur  v.  Saginaw,  58  Mich. 

357... 310^ 

Macauley  v.  New  York,  67  N.  Y. 

603 314- 

McBride  v.  Lynd,  55  111.  411....  592'" 
jNIcCaffrey  v.  Smith,  41  Hun,  117  74^ 
McCahill  v.  Kipp,  2  E.  D.  Smith, 

418 611'^  612',  627' 

McCaig  V.  Erie  R.  Co.  8  Hun.  599  648^ 
McCallum  v.  Gerrnantown  Water 

Co.  54  Pa.  40... 287- 

V.   Hutchinson,  7  U.  C.  C. 

P.  508 .483,  493.  51'^^ 

HMcCardle  v.  Barricklow,  68  Ind. 

356 427^ 

McCarthy  v.  Guild,  12  Met.  291..  6243 
V.  Mutual  Relief  Asso.  81 

Cal.  584. _ 183'^ 

D.  Syracuse,  46  N.  Y.  194 

109.  313'. 

317,  329^  330'  \  331'-,  343= 
V.  Young,  6  Hurl.  &  N.  329  490^ 
McCarty  v.  Kilchenman,   47  Pa. 

239 166',  17r 

V.  Kitchenman,  47  Pa.  243  164' 
JVIcCaskill  v.  Elliott,  5  Strobh.  L. 

196 586« 

605",  6069,  617',  620«,  628' 
McCearly  v.  Swayze,  65  Miss.  351 

480-',  485',  486^ 

McClain  v.   Tillson,   82  Me.  281 

- 531',  5352 

McCleneghan  v.  Omaha  &  R.  V. 

R.  Co.  25  Nel).  523...  4344 
McCloskey  v.  Powell,  123  Pa.  62.   269' 


McCombs  V.  Akron.  15  Ohio,  476  342' 
McCouicoB.  Singleton,  2  Treadw. 

244 543' 

McConnell  v.  Kibbe,  29  111.  483 

256\  4763 

McCord  V.  Doniphan   B.  R.  Co. 

21     Mo.    App.    92,    3 

VS'est.  Rep.  395  81' 

V.  High,  24  Iowa.  336     .. 

31 1*.  452'^  3^  454-,  455' 

McCormick  v.   Kelly,   28  Minn. 

137 ..    6343 

McCoull  V.  Manchester  (Va.)  2  L. 

R.  A.  091 100 

McCowan  v.  Wliitesides,  31  Ind. 

235 126'»,  475= 

McCready  v.   South  Carolina  R. 

Co.  2  Strobh.  L.  350..    664' 
V.  Thomson,  1  Dudley,  L. 

131.. 179* 

«.  Virginia,  94  U.  S.   391, 

24' L.  ed.  248 

-...3798  '0,  493,  495=  «,  496= 
McCullough     V.     Brooklyn,     23 

^Wend.  458 310* 

V.  Wall,  4  Rich.  L.  08  ....    389= 
McCummons  v.  Chicago  &  N.W. 

R.  Co.  33  Iowa,  187..    6483 
McDade  v.  Chester  City,  117  Pa. 

414,  10  Cent.  Rep.  779 

-. .3103,  311' 

McDaniel  v.   Cummings,  83  Cal. 

515,  8  L.  R.  A.  575.  _. 

299,  300*,  436' 

McDonald  v.  Lindall,   3  Rawle. 

495.... 168'',  169= 

V.  Newark,   42  N.   J.  Eq. 

136,  5  Cent.  Rep.  647 

74',  78=,  102' 

«.  Sneliing,  14  Allen,   290.    107= 
V.  Snelling,  14  Allen,   297.    608' 
McDonnell  v.  Cambridge  R.  Co. 

151  Mass.  159 81' 

V.  Culver,  8  Hun,  155 220" 

McDonough  v.  Gilman,  3  Allen, 

264 55 

McElhone's  App.  118  Pa.  618  ...  101" 
McFariin  v.    Essex    County,    10 

Cush.  304 513' 

McGarry  v.  Loomis,  63  N.Y.  104  28* 
McGenness  v.  Adriatic  Mills,  116 

Mass.  177 291  = 

McGeorgev.  Hoffman.  133  Pa.  381  426= 
McGibbon  v.  Ba.xter,  51  Hun.  587  642= 
McGinty  v.  New  York,  5  Duer. 

674 308' 

McGraw,  Be,  v.  Cornell  Univer- 
sity, 45  Hun,  354 88^ 

McGregor  v.  Boyle,  34  Iowa,  268 

290=,  329=,  330' 


Ixii 


TABLE    OP    CASES. 


McGrew  v.  Stone,  58  Pa.  43G. ...    SGS^ 
McGuire  v.  Grant,  25  N.  J.  L.  356 

..190',  2003 

V.  Grant,  25  N.  J.  L.  357, 

67  Am.  Dec.  49 38' 

V.   Rapid  City  (Dak.)  5  L. 

R.  A.  752 3072 

V.  Spence,  91  K  Y.  303...   115' 

V.  Spence,  91  N.  Y.  305...     52^ 

McTIvaine  v.  Lantz,  100  Pa.  586.    609^ 

Mclnlire  v.  Plaisted,  57  N.  H.  606  599' 

V.  Roberts,   149  Mass.  450 

108^  119',  120 

Mclntyre  v.   Storey,  80  111.  127, 

130 560' 

Mack  V.  Lombard  &  St.  P.  R.  Co. 
(C.  P.   Pa.)  18  Wash. 

L.  Rep.  84_ 655^ 

McKane«.  Michigan  Cent.  R.  Co. 

51  Mich.  601 150^ 

McKee  v.  Delaware  &  H.  Canal 

Co.  52  Hun,  52 435* 

V.  McKee,  8  B.  Mon.  433..   602^ 
McKeigne  v.  Janesville,  68  Wis. 

50 128^ 

McKeller    v.    Monitor    Twp.  78 

Mich.  485... 657' 

McKenzie  v.  Elliott  (111.)  24  N.  E. 

Rep.  965 234^  237" 

V.     McLeod,      10      Bing. 

385 644^ 

McKeon  v.  See,  4  Robt.  449,  51 

N.  Y.  300 10,  153 

t>.  See,  4  Robt.  466 77* 

Mackey  v.    Harmon,    34    Minn. 

168.-. 2053 

McKinnon    v.   Penson,   8  Exch. 

319,  321,  323.. 338^ 

McKinzie  v.  Elliott  (111.)  24  N.  E. 

Rep.  965 183«,  2636 

McKone  v.  Wood,  5  Car.  &  P.  1 

6215,  6278 

McLauchlin  v.  Charlotte  &  S.  C. 

R.  Co.  5  Rich.  L.  583.   473 
McLaughlin  v.  Armlield  (Sup.Ct.) 

34  N.  Y.  S.  R.  886...    662> 
®.  Cecconi,  141  Mass.  252, 
1  New  Eng.  Rep.  766 

207^  212,  215'' 3 

McLear  v.  Hapgood  (Cal.)  24  Pac. 

Rep.  788 4595 

McLellen  v.  Jenness,  43  Vt.  183.   201^ 
McMahon  v.  Second  Ave.  R.  Co. 

75  N.  Y.  231 252* 

McManUs  v.  Carmichael,  3  Iowa, 

1 372«.  376^  380^  386^ 

McMillen  v.  Cronin,  57  How.  Pr. 

53 1596 

McNarra  v.  Chicago  &  N.  W.  R. 

Co.  41  Wis.  69 666* 


Macon  &  W.  R.Co.  v.  McConnell, 

27  Ga.  481 648%  666^' 

McPadden   v.   New  York  C.  R. 

Co.  44  N.  Y.  478 133» 

McPheeters  -».  Hannibal  <fe  St.  J, 

R.  Co.  45  Mo.  22 593' 

McPherson  v.   Acker,   MacArth. 

&M.  150 171' 

McPheters  «.    Moose   River  Log 

Driving    Co.    78    Me. 

329,  2  New  Eng.  Rep. 

456--.. 5563 

McRoberts    v.    Washburne,    10 

Minn.  23. 479*,  483' 

V.  Washburne.  10  Minn.  27   480« 
Maddock,  He,   103  N.  Y.  630,  5 

Cent.  Rep.  791 215* 

Maddox  v.  Cunningham,  68  Ga. 

431 375 

Madison  v.  Baker,  103  Ind.  4,  1 

West.  Rep.  116 328- 

Madras  R.  Go.  v.  Zemindar,  L.R. 

1  Ind.  Apo.  364,  30  L. 

T.  N.  S.  770,  32  Week. 

Rep.  865 2733 

Maggie.  Cutts,  123  Mass.  535. ..  620- 
Magnerv.  People,  97  111.  332....    533- 

V.  People,  97  111.  333 542 

Magnolia,    Tlie,   v.   Marshall,  39 

Miss.  109 378* 

Mahady  v.  Bushwick  R.   Co.  91 

N.Y.  149.. 93« 

Mahogany  v.  Ward,  16  R.  I.  — 

.365*.   367,  656' 

Mahoney  v.  Libbey,  123  Mass.  20  88* 
Maine  v.  Cumston,  98  Mass.  317 

204\  223,  334* 

3[ainon  v.  Creigh,  37  Conn.  462.  188^ 
Mairs  v.  ^Manhattan  Real  Estate 

Asso.  89  N.  Y.  498...     37* 
Malcomson   v.   O'Dea,  10  H.  L. 

Cas.  593 498^ 

Maleverer  v.  Spinke,  1  Dyer,  360  647^ 
Mallocke  v.  Eastly,  3  Lev.  227...  526' 
Malloy  V.  Hibernia  Sav.  &  Loan 

Soc.(Cal.)21Pac.  Rep. 

525 27*,  1223,  59(3 

Malone  v.  Toledo,  28  Ohio  St.  643  93^ 
Mamer  v.  Lussem,  65  111.  484. .38', 190' 

Maney».  State,  6  Lea,  218 535' 

Mangam  v.    Brooklyn  R.  Co.  38 

N.Y.  455 38*- 

Manganv.  Atterton,  L.  R.  1  Exch. 

239. 584 

Manbasset,    The,   19   Fed.  Rep. 

430. 370' 

Manhattan  Gaslight  Co.  v.  Barker, 

36How.  Pr.  233 79' 

Manhattan  Transp.  Co.  v.  Mayor, 

37  Fed.  Rep.  160 566» 


TABLE    OF    CASES. 


Ixiii 


Manier  ?j.Mvcrs,  4  B.  Mon.  520..    179^ 
V.  Myers,  6  B.  Mou.  VS2...   42«'' 
Manitoba,  Tlie,  122  U.  S.  97,  30 

L.  ed.  1095 369' 

Manley  v.  St.  Helen's  Canal  &  R. 
Co.  2  Hurl.  &,  N.  840. 

b9\  5073 

Maun  V.  Best,  62  Mo.  491 230> 

V.  Dunham,  5  Graj',  511 163^ 

V.  Weiand,  81*  Pa.  243....    606^ 

V.  Weiand,  81*  Pa.  255 620' 

V.  Wilkinson,  2  Sumn.  276  476^ 
Manners  v.  Haverhill,  135  Mass. 

165 347^ 

Mannins:  v.  Lowell,  130  Mass.  21  351 
B.^Lowell,  130  Mass,  21,  22  349^ 
i\  Lowell,  130  Mass.  21,  25  348^ 

V.  Smith,  6  Conn.  289 574^ 

V.  Wasdale,  5  Ad.  &  El.  758  188" 
Marble*.  Ross,  124  Mass.  44.617',  631^ 
Marcly  v.   Schults,  29  N.  Y.  346 

.- .1673,  419'^ 

Marcy  v.  Merchants  Mut.  Ins.  Co. 

19  La.  Ann.  388 659' 

Margraf  ».  Muir,  57  N.  Y.  157...    245' 
Marianna  Flora,  The,  24  U.  S.  11 
Wheat.  1,  54,  6  L.  ed. 

405,  417 368' 

Marine  Ins.   Co.   v.  St.  Louis,  I. 
M.  &  S.  R.  Co.  41  Fed. 

Rep.  643 lOOS  656^ 

Mark  v.  Hudson  River  Bridge  Co. 
103  N.  Y.  28,  4  Cent. 

Rep.  203 862' 

Marquette  v.  Clary,  37  Mich.  296  330' 
Marquette,  H.   &  O.   R.    Co.    v. 

Spear,  44  Mich.  169...  668* 
Marsden  v.  Cambridge,  114  Mass. 

490 ..266',  267 

Marsh  v.  Chickering,  101  N.  Y. 

396... 138' 

V.  Colby,  39  Mich.  626.. 517,  525 
V.  Hand,  120  N.  Y.  315...  623' 
V.  Jones,  21  Vt.  378. ..619',  621^ 
Marshall  v.  Grimes,  41  Miss.  27.  481^ 
V.  Roberts,  18  Minn.  405..  230' 
V.  Wei  wood,  38  N.  J.  L.  339 

l45^ 

146^  151, 153,  271^  272,  586i 
Marsland  v.  Murray,  148  Mass.  191  28* 
Martin  v.   Benoist,  20  Mo.  App. 

262,  2  West.  Rep.  541 

270',  273\  295' 

«?.  Bliss,  5  Blackf.  35 375* 

V.  Jett,  12  La.  501 295^ 

V.  Mason,   78   Me.    452,    3 

New  Eng.  Rep.  265...  5583 
V.  O'Brien,  34  Miss.  21....3783  « 
V.  Pettit.  117  N.  Y.  118,  5 

L.  R.  A.  794. 41 


Martin  v.  Riddle,  26  Pa.  415,  note 

298*.  299* 

V.  Wftddell.  41  U.  S.  16  Pet, 

367,  10   L.  ed.  997 

..379'*,  4942*5 

I'.Waddell,  41  U.S.  16  Pet. 

410,  lOL.  ed.  1013....  493» 
V.  Western   U.    R.    Co.   23 

Wis.  437 664' 

Mason  v.  Harper's  Ferry  Bridge 

Co.  17  W.Ya.  396....    484' 
V.  Hill,  5  Barn.  &  Ad.  1...   287' 
V.  Hoyle,  56  Conn.  255.  6 
New   Eng.  Rep.  629.. 

5443,  5483 

V.  Keeling,  1  Ld.  Raym.  606  605'^ 
V.  Keeling,  12  Mod.   332.. 

614,  6292 

V.  Mansfield,  4  Cranch,  C. 

C.  580.... 538* 

V.  Morgan,  24  U.  C.  Q.  B. 

328- 591*,  593',  604' 

V.  The  William  ilurtaugh, 

3  Fed.  Rep.  404 369» 

Masonic  Temple  Asso.  v.  Harris, 
79  Me.  250, 4  New  Eng. 

Rep.  407 576* 

Massey  tJ.  Goyner,  4  Car.  &  P.  161 

192,  199"^ 

Masury  v.  Southworth,  9  Ohio  St. 

340 2216 

Mathers.  Chapman,  40  Conn.  382  378"^ 
Mathews  v.  Kelsey,  58  Me.  56...  251 
Matthew  v.  Offley,  3  Sumn.  115..  4873 
Matthews  v.  Bonsee,  51  N.  J.  L. 

630 21' 

V.  Dixey,  149  Mass.  595,  5 

L.  R.  A.  102.. 223* 

Mathiason  v.  Moyer,  90  Mo.  585, 

7  West.  Rep.  739 656=" 

Matson  t).  Maupin,  75  Ala.  312..  612* 
Matts  V.  Hawkins,  5  Taunt.  20.. 

204',  20935,  218 

Maverick,  The,  1  Sprague,  24...  485* 
Maxmilian  v.  New  York,  62  N.Y. 

160 337' 

Max  Morris,  The,  v.  Curry.  137 
U.  S.  1.  34  L.  ed.  586. 

...368^  369 

Maxwell  v.  Bay  City  Bridge  Co. 

41  Mich.  453,  466.389^  517" 
V.  Dist.  of  Columbia,  91  U. 

S.  557,  23  L.  ed.  445..    342' 
V.  McAtee,  9  B.  Mon.  20.-245'  * 
V.  Palmerton,  21  Wend.  407   627^ 
May  V.  Burdett,  9  Q  B.  101.587', 

604-,  619' \  620«,  629',  630» 
V.  Burdett,  9  Q.  B.  112....  588' 
V.  Le   Claire,   78   U.  S.   11 

Wall.  217,  20L.ed.  50  230»- 


Ixiv 


TABLE    OF    CASES. 


Mayhew  v.  Burns,  103  Ind.   328, 

1  West.  Rep.  577... 38',  648 
V.  Wardley,  14  C.  B.  N.  S. 

548.... 528 

Mayo  1).  Newhoff  (N.  J.)  19  Atl. 

Rep.  837 160',  164^ 

V.  Spriiii^field,  136  Mass.  10  120' 
Mead  v.  New  Haven,  40  Conn.  72  337' 
Meares  v.  Wilmington,  9  Ired.  L. 

73. 330'' 

Mears  v.  Dole,  135  Mass.  508....  271 
Mebane  v.  Patrick,  1  Jones,  L.  23  427'" 
Mechanicsburg  «.  Meredith,  54  III. 

84... 290' 

Medford  First  Parish  v.  Pratt,  4 

Pick.  222.. A2V'\  582' 

Meek  v.   Breckenridge,  29  Ohio 

St.  642.. ...182',  1848 

Meeker    v.    Van    Rensselaer,    15 

Wend.  397-. 6482 

MehrboflE  Bros.  Brick  Mfg.  Co.  v. 

Delaware,  L.  &  W.  R. 

Co.  51  N.  J.  L.  56...-  783 
3Ieibus  v.  Dodge,  38  Wis.  300,  20 

Amr  Rep.  6.617',  6313,  632* 
Meickley  v.  Pars(>ns,   66    Iowa, 

63 634* 

Mellen  v.  Morrill,  126  Mass.  545. 

----47,  63',  1212 

Mellor  V.  Pilgrim,  3  111.  App.  476, 

7  III.  App.  306.- 302' 

Memmertw.  McKeen,  112  Pa.  315, 

3  Cent.  Rep.  383 -.205^  241^ 
Memphis  v.  Overton,  3  Yerg.  389  377^ 
Memphis  &  O.  R.  Co.  v.  Hicks,  5 

Sneed,   427 80^  47P 

Memphis  &  O.  R.  Packet  Co.  v. 

McCool,  83  Ind.  392..  147' 
Mendell  v.  Delano,  7   Met.  176.. 

.1842,  576* 

Meredith  v.  Reed,  26  Ind.  334... 

585-,  604-'.  6072,  609^  617^ 
Merrifield  v.  Lombard,  13  Allen, 

16 2882,  4563 

V.  Worcester,  110  Mass.  216 

_292',  304»,  322' 

V.  Worcester,110  Mass.  216, 

219. 547' 

V.  Worcester,  110  Mass.  216, 

220 350' 

V.  Worcester,110  Mass.  216, 

221 347*,  349^ 

V.  Worcester,  110  Mass.  218  343^ 
Merritt  v.  Brinkerhoff,  17  Johns. 

306 5443 

Merchants  Wharf.  Boat  Asso.  v. 

Wood,  64  Miss.  661 ...  136' 
Mersey  Docks  v.  Gibbs,  L.  R.  1 

H.  L.  93,  35  L.  J.  N. 

S.    Exch.   225.. .-566^  5633 


Mersey  Docks  v.  Gibbs,  L.  R.  1 

H.    L.   115,    35  L.    J. 

N.  S.  Exch.  225 24* 

v.  Gibbs,  11  H.  L.  Cas.  687  345' 
v.  Penhallow,  30  L.  J.  N. 

S.  Exch.  329 5682 

V.  Penhallow,  7  Hurl.  &N. 

329 568* 

Mertz  V.  Detweiler.  8  Watts  &  S. 

376. ...J 613' 

V.  Dorney,  25  Pa.  519 2632 

Merwin  v.  Wheeler,  41  Conn.  14 

1883.  1893,  378' 

Messinger's  App.  109  Pa.  285,  1 

Cent.  Rep.  424 

.-409',  426',  429',  441*.  442' 
Metallic  Compression  Casting  Co. 

V.   Fitchburg    K.    Co. 

109  Mass.  27"7 IO72 

Metropolitan  Asylum  Dist.  v.  Hill, 

L.  R.  6  App.  Cas.  193, 

34  Eng.  Rep.  (Moak's 

notefi)-678 456' 

Metropolitan  Bd.   of    Works  v. 

McCarthy,  L.  R.  7  H. 

L.243 2662 

Metropolitan  R.  Co.  v.  Jackson, 

L.  R.  3  App.  Cas.  193.    139' 
Metropolitan  Teleph.  &  Teleg  Co. 

1).  Colwell  Lead  Co.  67 

How.  Pr.  365 97^ 

Meyer  v.  Atlantic  &  P.  R.  Co.  64 

Mo.  543- 636' 

V.  Cook.  85  Ala.  417 586^ 

Meyers  v.  St.  Louis,  8  Mo.  App. 

266 --    3592 

V.   St.  Louis,  8  Mo.  App. 

266,275- 4542 

Michael  v.  Alestree,  2  Lev.  172..    612' 
Middlesex    Co.   v.   McCue,    149 

Mass.  103 9^  396= 

Middlestadt  v.  Morrison  (Wis.) 44 

N.  W.  Rep.  1103 107« 

Middleton  v.  Flat  River  Booming 

Co.  27  Mich.  533.405',  524 
Miles  V.  James,  1  McCord,  L.  157, 

159- 488' 

V.  Rose,  5  Taunt.  706 374* ' 

Milford  V.  Holbrook,  9  Allen,  17 

--105',  114' 

Milhau  V.  Sharp,  15  Barb.  193...     12« 
Mill   Creek   Twp.  v.  Perry  (Pa.) 

10  Cent.  Rep.  299.129',  131' 
Millen  v.  Fandrye.  Poph.  161  ...    627^ 
Miller  v'.  Brown,  33  Ohio  St.  547.   2103 
V.  Church,  2  Thomp.  &  C. 

259 56 

V.  Dale,  72  Iowa,  470 6022 

V.  Forman,   37    N.    J.  L. 

56 470" 


TABLE    OF    CASES. 


Ixv 


Miller  v.  Garlock,  8  Barb.  153... 

...234^  427'o,  571' 

V.  Laubacb,  47  Pa.  147....  2\W 
V.  Laubacb,  47  Pa  154....  299^ 
V.  Martiu,  16  Mo.  508.6442,  645' 
V.  Mendenball,43  Minn.  95, 

8  L.  R.  A.  89 

388',  390',  561*5 

V.  Miller,  9  Pa.  74...  283',  448'  « 
V.  Morristown   (N.    J.)   20 

Atl.  Rep.  61 

3045,  30,53  306-2,  3262 

V.  New  York  City,  109  U. 
S.  385.  395,  27  L.  ed. 

971,975 

370^  3728,  4641,   4652,  478', 
Mill   River  Woolen   Mfg.  Co.   v. 
Smith,  34  Conn.  463.. 

_.. 389^  413' 

Mills  V.  Brooklyn,  32  N.  Y.  489 
...305^  313,  313',  316, 
326*,    329=,     330=*  ^fi"",    338' 
V.  Hall,  9  Wend.  315.... 7P,  79' 

«.  Learn,  2  Or.  215 480-  » 

V.  New  York  &  H.  R.  Co. 
2  Robt.  326,  41  N.  Y. 

619... 632S 

v.  St.  Clair  Co.  49  U.  S.  8 
How.   581,   12  L.   ed. 

1206 479* 

Milne's  App.  81  Pa.  54 233* 

Milnor  i>.  New  Jersey  R.  & 
Transp.  Co.  70  U.  S.  3 
Wall.   721,   16   L.   ed. 

799 463*,  478* 

Milus  V.  Dodge,  38  Wis.  300 586" 

Milwaukee  v.  Gross,  21  Wis.  241.   152- 
Milwaukee  &  St.  P.  R.  Co.  v.  Kel- 
logg, 94   U.  S.  469,  24 

L.  ed.256 

106^  653,  654',  658 

Minard  t.  Douglas  County,  9  Or. 

206... 481' 

Miner  v.  Gilmour,  12  Moore,  P. 

C.  131- 442^ 

V.   Gilmour,  12  Moore,  P. 

C.  155.... 409',  441- 

Minke  v.  Hopeman,  87  111.  450  ..   468* 
Minor  v.  Wright,  16  La.  Ann.  151   295- 

Mintoi;.  Delaney,  7  Or.  337 397^ 

Minzies  v.  Macdonald,  36  Eng.  L. 

&  Eq.  20 521 

Mississippi  &  M.  R.  Co.  v.  Ward, 
67  U.  S.  2  Black,  485, 

17  L.  ed.  311 

79',  4635  6,  477S  478*  ^ 

Mississippi  &  R.  R.  Boom  Co.  v. 

Prince,  34  Minn.  79  ..    556' 
Mississippi  &  T.  R.  Co.  v.  Archi- 
bald, 67  Miss.  38.-432%  467^ 


Mississippi  Boom  Co.  v.  Patter 
son,   98   U.   S.  403,   25 

L.  ed.  206 .-     90* 

Missouri  Pac.  R  Co.  v.  Donald- 
son, 73  Te.x.  124 647* 

V.  Fagan,  72  Tex.  127,  2  L. 

R    A.  75 6395 

V.  Finlev,  38  Kan.  500...   633^  * 

V.  Kincaid,  29  Kan.  654 669* 

V.  Platzor,    73  Tex.  117,  3 

L,   R.   A.  639.... 646',  647* 
V.  Texas  eV    P.   R.  Co.  31 

Fed.  Rep.  .526 654'  * 

Mistier  v.  OGrady,  132 Mass.  139, 

118,    118' 

IHitchell  V.  Chicago  &  G.  T.  R. 

Co.  51  Mich.  236 

137^  1395,  142' 

V.  Parks,  26  Ind.  354 429^ 

V.  Rockland,  52  Me.  118  ..    335^ 

V.  Seipel,  53  Md.  251 167' 

V.  AYalker,  2  Aik.266 582' 

Mitchiil  V.  Allestry,  3  Keb.  650..   587' 

Mitten  v.  Fandrye,  Poph.  61 615^ 

Mobile  V.  Emanuel,  42   U.   S.  1 

How.  05.  11  L.  ed.  60.   37P 
V.  Emanuel,    42    U.    S.     1 

How.  97,  11  L.  ed.  60.   379' 
V.  Eslava,  41  U.  S   16  Pet. 

234,  10  L.  ed.  948    ...    37P 
V.  Hallett,  41  U.  S.  16  Pet. 

261,  10  L.  ed.  958 37P 

Mobile  &  M.  R.  Co.  v.  .Jure v.  Ill 
U.  S.  584,  592,  28  L. 

ed.  527.  530... 572' 

Mobile  &  O.  R.  Co.  v.   Hudson, 

50  Miss.  572 147' 

Moe  V.  Job  (N.  Dak.)  45  N.  W. 

Rep.  700 645^^ 

Moellerintrr.  Evans,  121  Ind.  195, 

"6  L.  R.  A.  449 

38',  190',  200» 

Moflfatt  V.  Bateman,  L.  R.   3  C. 

P.  115 612' 

Mohawk  Bridge  Co.  v.  Utica  & 
S.  R.  Co.  6  Paige,  563, 
3  N.   Y.   Ch.   L.    ed. 

1108...  77" 

Monongahela  Bridge  Co.  v.  Kirk, 

46  Pa.  112 3765 « 

Monongahela  Nav.  Co.  v.  Coon, 

6  Pa.  383. 546' 

Monroe  v.  Gates,  48  Me.  463 545* 

Monson  &  B.  Mfg.  Co.  •».  Fuller, 

15  Pick.  554 271 

Monlefiore  v.    Browne,   7  H.  L. 

Cas.  241 242' 

Montello,  The,  78  U.  S.  11  Wall. 
411,  20  L.  ed.  191  .... 
370^  372^  377' 


E 


Ixvi 


TABLE   OF    CASES. 


492^ 


5933 

616' 

200*^ 
66()' 
4125 


3633 

4573 
103' 


128-* 

2473 


Montello,  The,  87  U.  S.  20  Wall. 

480,  22  L.  ed.  391.... 

403^ 

370,    372«,    374«.    377f 
Montgomery  v.  Gilmer,  33  Ala. 

116 3283,  3292,  33P 

V.  Handy,  63  Miss.  43 

V.  Koester,   35     La.    Ann. 

1091.. 

Moody  V.  McClelland,  89  Ala.  45 

198\ 

Mooney  v.  Peak,  57  Mich.  259  .. 

Moor®.  Veazie,  31  Me.  360 

V.  Veazie,  32  Me.  343 377 

Moore  v.  Central  R.  Co.  24  N.  J. 

L.  268.. 

V.  Clear  LakeWaterWorks, 

68Cal.  146 

V.  C4adsden,  93  N.  Y.  12.. 

V.  Goedel,  34  N.  Y.  527... 256-^  •* 

V.  Huntington,   31  AV.  Va. 

842 

V.  .Jackson,  2  Abb.  N.   C. 

211. 

V.  Loe:an  Iron  &  Steel  Co. 

(Pa.)  4  Cent.  Rep.  506  25'^ 
V.  Los  Angeles,  72  Cal.  287  3328 
V.  Pilot   Comrs.    32    How. 

Pr.  184 775 

V.  Rawson,  3  Barn  &  C.  332 

187>,  578« 

V.  Sanborne,  2  Mich.  519.. 

376\ 

3773  \  402',  403\  405',  524 
V.  Sanborne,  2  Mich.  523..    5503 

V.  White,  45  Mo.  206 595'' 

Mootry  v.  Danbury,  45  Conn.  550   292^ 
Moran  v.  McClearns,  63  Barb.  185 

.292^  326* 

V.  McClearns,  63  Barb.  195   3283 
Moreland  v.  Boston  &  P.  R.  Corp. 

141  Mass.  31,  1   New 

Eng.  Rep.  909 363' 

Morey  v.  Brown,  42  N.  H.  373  ..    626-^ 
V.  Fitzgerald,  56  Yt.  487  ..    124* 
Morgan  v.  Graham,  1  Woods,  124 

....75*, 

v.  Hallow  ell,  57  Me.  375-. 
V.  King,  35  N.  Y.  454 

..389^  407',  463',  479^ 

V.  King,  35  N.  Y.  459... 376'^  ^  « 
V.  King,   35  N.  Y.  454,  30 

Barb.  1 

V.  King,  35  N.  Y.  454,   30 

Barb.  9,  18  Barb.  277. 
V.  King,   18  Barb.  282,  35 

N.  Y.  459 403' 

V.  King,  18  Barb.  277 403« 

V.  Livingston,  6   Mart.  O. 

S.  216 397' 


4753 
233 


412' 


3773 


Morgan  v.  Mason,  20  Ohio,  401..    162* 

V.  Moore.  3  Gray,  319 184* 

V.  Nagodish,  40   La.  Ann. 

246 541" 

V.  Pennsylvania   R.  Co.  19 

Biatchf.  239 24' 

V.  Scott,  26  Pa.  51 396^ 

Morley  v.  Pragnell,  Cro.  Car.  510  270- 
Morrill  v.  Hurley,  120  Mass.  99.. 

296^  3023,  3034^  3493. 

V.  St.  Anthony  Falls  VVater- 
Power  Co.   26    Minn. 

222 .-   359- 

Morris  v.   B rower,  Anth.  N.  P. 

368 41^     622- 

■a.  Commander,  3  Ired.  L. 

510 262* 

V.  Fraker,  5  Colo.  425 593' 

V.  French.  106  Mass.  326..    1633 
V.  New  York   C.  &  H.  R. 
R.  Co.  106  N.  Y.  678, 

9  Cent.  Rep.  288 139« 

«.  Nugent,  7  Car.  &  P.  568   628^ 
V.  Venderen,  1  U.  S.  1  Dall. 

67,  1  L.  ed.  40 443*- 

Morris  &  E.   R.   Co.  v.  Newark, 

ION.  J.  Eq.  352 92'- 

«.  Prudden,20  N.  J.  Eq.530     76^ 
Morris  Canal  &  Bkg.  Co.  v.  Jersey 

City,  26  N.  J.  Eq.  294  412^ 
Morrissey  v.  Eastern  R.   Co.  126 

Mass.  377 233- 

Morrison  v.  Bucksport  &  B.   R. 

Co.  67  Me.  353... 295',  300'^ 
V.  Coleman,  87  Ala.  655,  5 

L.  R.  A.  384 

...375'*,  405' 2  4,  408^  476^ 
v.  King,  62  111.  30.162*,  166'.  168*^ 
V.  Lawrence,  98  Mass.  219 

.337',  352' 

V.  Marquardt,24  Iowa,  35.    180- 
Morse  v.  Benson  (Mass.)  24  N.  E. 

Rep.  675 244^ 

V.  Copeland,  2  Gray,  302.. 

187*,  571' 

«.  Nixon,  6  Jones,  L.  293.   628* 

V.  Reed,  28  Me.  481 601' 

V.  Sweenie,  15  111.  App.  486   127* 
Moses  V.  Pittsburgh,  Ft.  W.  &  C. 

R.  Co.'21  111.  516 73'' 

Moses  Taylor,  The,  71  U.   S.  4 
Wall.  411,   18   L.  ed. 

397 -.   371' 

Mosey  v.  Troy,  61  Barb.  580  ....    843' 
Moshier  v.  Utica  &  S.   R.  Co.  8 

Barb.  437 35' 

Mosier®.  Caldwell,  7  Nev.  363..   280' 
Mossman  v.  Forrest,  27  Ind.  233.    375' 

Motes  V.  Bates,  80  Ala.  382 181* 

Mott  V.  Mott,  68  N.  Y.  246 389* 


TABLE    OF    CASES. 


Ixvii 


Mould  V.  Williams,  5  C.  B.  409..    250' 
Moulton  V.  Libbey,  37  Me.  4:12.. 

4U.-y^510S  540' 

V.    Scarborough,     71    Me. 

269 dW^^ 

Mounsey  v  Isinay,  1  Hurl.  &  C. 

7:29.. 189" 

Mount  Adams  &  E.  P.  I.  R.  Co. 

t'.Winslow,  3  Ohio  Ct. 

Ct.  Rep.  425 .-..    25P 

Mt.  Vernon  v.  Dusouchett,  2  Ind. 

586 126^ 

Mouse's  Case,  12  Coke,  63 6',  647^ 

Mowatt  V.  McFee,    5    Sup.    Ct. 

(Can.)  66 496^ 

Mower  v.  Leicester,  9  Mass.  247, 

250 338^  339 

Mowry  v.  Sheldon,  2  R.  I.  369...   571' 
Moynahan  v.  Wheeler,  117  N.  Y. 

285.. 6053 

Moynihan  v.  Wliidden,  143  Mass. 

287,  3  New  Eng.  Rep. 

362 lOP 

Mud  Creek.  I.  &  A.  Mfg.  Co.  v. 

Vivian,  74  Tex.  170.. 

425',  443» 

Mueller  v.  Fruen,  36  Minn.  273,.    426^ 
Mulcairns  v.  Janesville,  67  Wis. 

24 ...337«,  342' 

MuUaney  v.  Spence,    15  Abb.  Pr. 

N.  S.  319 29* 

Mullen  V.  Rainear,  45  N.  J.  L.  520     62* 
V.    St.  John,   57  N.  Y.  567 

....493,  51^  146',  147'^  149' 
V.  Strieker,  19  Ohio  St.  135   180^ 
Muller  V.  McKesson,  73  N.  Y.  195 

587',  616', 

618',  619',  62r,  63U^  631' 
Mullis  V.  Gavins,  5  Blackf.  77...  480' 
Mulroy  v.  Norton,  100  N.  Y.  424, 

1  Cent.  Rep.  748,  752. 

359«, 

360',  393^  3993, 400*  ^ « \  401^ 
Mumford  v.  Wardwell,  73  U.  S.  6 

Wall.  423-436, 18  L.ed. 

756-760 493' 

V.  Whitney,  15  Wend.  380  185^ 
Munger  v.  Marshalltown,  59  Iowa, 

763 128' 

Municipality  No.   2    v.   Orleans 

Cotton  Press,   18  La. 

122 396' 

V.  Orleans  Cotton  Press,  18 

La.  213.. 3932 

Munn  V.  Illinois,  94  U.  S.  113,  24 

L.  ed.  77 ...     97' 

Munro  v.  Thomas,  5  Cal.  470 485 

Munroe  v.  Ivie,  2  Utah,  535 446' 

Munson    v.    Baldwin,    7    Conn. 

168 498^ 


Munson  o.Hungerford,  6  Barb. 265 

377^  405» 

V.  Hungerford,  6  Barb.  268  550» 

V.  Reid,  46   Hun.   399 

237».  258\  575* 

Murchie  v.  Gates,  78  Me.  300,  2 

New  Eng.  Rep.  435.   .  235'o 
Murdock  v.  Chapman,  9  Gray,  156   163' 
V.  Prospect  Park  &  C.  I.  R. 

Co.  73  N.  Y.  579 90' 

n.    Stickney,  8  Cush.  113, 

115 374» 

Murphey  v.  Wilmington,  5  Del. 

Ch.  281 307» 

Murphy  v.  Chicago.  29  111.  275..  30.5^ 
V.  Cliicago,  29  111.  279  ....  305* 
V.  Chicaso  &  N.  W.  R.  Co. 

45  Wis.  222 666* 

V.  Indianapolis,  83  Ind.  76  128' 

V.  Kelley,  68  Me.  521 295» 

V.  Lowell,  124  Mass.  564.. 

31 P,  343^  347*,  349* 

V.  McGraw,  74  Mich.  318..   63ft 
V.  Preston,  5  Mackey,  514, 

9  Cent.  Rep.  146. 59P,  605» 
Murray  v.  Haverty,  70  111.  318...    201* 
ij.  McLean,  57  111.  378  ....      i9» 
V.  McShane,  52    Md.   217, 

36  Am.  Rep.  367 

...27^  121',  125* 

V.  Young,  12   Bush,  337.. 

586^  620» 

Murry  v.  Sermon,  1  Hawks.  56.399^  '» 
Musgrave  v.  Sherwood,  60  How. 

Pr.  339... 210* 

V.  Smith,  37  L.  T.  N.  S.  367  270* 
Musser  v.  Hershey.  42  Iowa.  356  79' 
Mussey     v.     Proprietors     Union 

Wharf,  41  Me.  34....  575' 
Muster  v.  Chicago,  M.  &  St.  P.  R. 

Co.  61  Wis.  325..  133^  146^ 
Myers  v.  Malcolm,  6  Hill,  292...     79^ 

N. 

Nadau  v.  White  River   Lumber 

Co.  76  Wis.  120 5842- 

Nafe  V.  Leiter,   103   Ind.   138,   1 

West.  Rep.  165... 590',  602* 
Nagel  V.  Missouri    P.  R.  Co.  75 

Mo.  653 29" 

Nagle  V.  Ingersoll,  7  Pa.  185....  3805- 
Naile  V.  Paiigi  (Tex.)  1  L.  R.  A. 

f. 209',  210'.  223" 

Napier  v.  Buhvinkle,  5  Rich.  L. 

311.. 180^  201^  237" 

V.   Bulwinkle,  5  Rich.  L. 

311,  324 233=- 

Nash   V.  New  England   Mut.  L. 

Ins.  Co.  127  Mass.  91.  242* 


Ixviii 


TABLE   OF   CASES, 


Nat.  Docks  R.  Co.  v.  Central  R. 

Co.  32  N.  J.  Eq  755-  90^ 
National  Exch.  Bank  v.  Cutining- 

hara,  46  Ohio  St.  575.  165' 
National  Manure  Co.  v.  Donald, 

4  Hurl.  &  N.  8 575' 

Nave  V.  Flack,  90  Ind.  205,  207 

19^  205 

«.  Flack,  90  Ind.  212 128« 

Neaderhouser  v.  iState,  28  Ind.  257 

...375-,  405' 

V.  State,  28  Ind.  270 550^ 

Nealley  v.  Bradford,  145  Mass. 

561,  564.  5  New  Eng. 

Rep.  515. -..3475,  349*.  383' 
Nebraska  City  v.  Campbell,  67  U. 

S.  2  Black,  590,  17  L. 

ed.  271.340'.  342',  343^  344" 

V.  Lampkin,  6  Neb.  27 305- 

Needham  «.  Louisville  &  N.  R. 

Co.  85  Ky.  423. 362» 

Neflf  V.  Paddock,  27  Wis.  546  ...  27- 
Neffer    v.  Wellesley.    148    Mass. 

487,  2  L.  R.  A.  500...  346 
Neill  V.  Duke  of  Devonshire,  L. 

R.  8  App.  Cas.  135  . .  496* 
Neitzey  v.  Baltimore  &  P.  R.  Co. 

5  Mackey,  34,  3  Cent. 
Rep.  773.. 822 

Nellis  V.  Munson,  108  N.  Y.  453, 

11  Cent.  Rep.  449  ....    158^ 

Nelson  v.  Leland,  63  U.  S  22  How. 

48,  16  L.  ed.  269 408' 

V.  Liverpool   Brewery   Co. 
L.  R.  2  C.  P.  Div.  311 
...45,  46,  48',  49'  \  51-,  52- 
V.  Phoenix  Chemical  Works, 

7  Ben.  37 566-' 

Nevins  v.  Peoria,  41  111.  502,  89 

Am.  Dec.  392 

290',  2915, 

304%  305".  3063,  3301^  4.542 
V.  Peoria,  41  111.  502,  510..  435^ 
V.  Peoria,  41  111.504 292« 

Newark  v.  Delaware,  L.  &  W.  R. 
Co.  42  N.  J.  Eq.  196, 
5  Cent.  Rep.  629 77' 

Newark  Aqueduct  Board  v.  Pas- 
saic, 45  N.  J.  Eq.  393. 
385',  454',  468-^3^  477^ 

Newark  PI.  Road  &  Ferry  Co.  v. 

Elmer,  9  N.  J.  Eq.  755  468- 

New  Bedford  v.  Taunton,  9  Allen, 

207 -.335*,  346' 

Newell  V.  Minneapolis,  L.  &  M. 
R.  Co.  35  Minn.  112, 
59  Am.Rep.  303-.-95',  25P 

Newhall  v.  Ireson,  8  Cush.  595, 

54  Am.  Dec.  790 

41P,  443^  451* 


New  Haven    Steamboat    Co.   v. 

Vanderbilt,    16  Conn. 

420 .- 637' 

New  Ipswich  W.  L.  Factory  v. 

Batchelder,3N.  H.  190 

167-,  175',  419* 

New  Jersey  Steam  Nav.  Co.  v. 

Merchants  Bank,  47  U. 

S.  6  How.  844,  12  L. 

ed.  465 371' 

New  Jersey  Zinc  &  Iron  Co.  v. 

Morris  Canal  &  Bkg. 

Co.  44  N.  J.  Eq.  398. 

1    L.    R.    A.    133,    13 

Cent.  Rep.  342 385' 

Newkirk  v.  Sabler,  9  Barb.  652..    124* 
Newman  v.  Nellis,  97  N.  Y.  285.. 
New  Orleans  v.  Stafford,  27  La. 

Ann.  417,  21  Am.  Rep. 

563 

V.  United  States,  35  U.  S. 

10  Pet.  662,  9  L.  ed.  563 

....397' 

V.  United  States,  35  U.  S. 

10  Pet.  662,  717,  9  L. 

ed.  573,  594 393- 

New  Orleans,  J.  &  G.  N.  R.  Co. 

«.  Albritton,  38  Miss. 

242 

V.  Enochs,  42  Miss.  603  ... 
New  Orleans,  M.  &  C.  R.  Co.  v. 

Hanning,  82  U.  S.  15 

Wall.649,  21L.  ed.  220  568* 
V.    Banning,   82    U.   S.   15 

Wall.  658,  21  L.  ed.  223  39'^ 
New  Orleans.  M.  &  T.  R.  Co.  v. 

Ellertnan,    105    U.    S. 

166,  26  L.  ed. 1015  ... 

388',  390' 

V.  Mississippi,  113  U.  S.  12, 

28  L.  ed.  619_ 466' 

Newport  v.  Taylor,   16  B.  Mon. 

699.1 

Newport    &    C.    Bridge    Co.    ?', 

United  States,  105  U. 

S.  470,  475,  26  L.  ed. 

1143,  1145 372*,  466^  •* 

New  River  Co.  v.  Johnson,  3  El. 

&  El.  435 

Newton  v.  Cubitt,  12  C.  B.  N.  S. 

32.. 480^3, 

V.  Gordon,  72  Mich.  642... 
New  World,  The,  v.  King,  57  U. 

S.  16  How.  469,  14  L. 

ed.  1019 363' 

New  York  v.  Bailey,  2  Denio,  433 

..256',  431,  431*,  439 

V.  Bailey,  2  Denio,  440 35* 

V.  Broadway  &   S.  A.    R. 

Co.  97  N.  Y.  275 88« 


162* 


152' 


401 


1555 

147' 


560' 


265* 

482* 
624' 


TABLE   OF    CASES. 


Ixix 


New  York  v.  Furze,  3  Hill,  612. 

3263,  3,)8»,   32y\  330'',  343- 

V.  Hart.  95  N.  Y.  451 88' 

V.  Lord,  17  Wend.  285....    321-' 
V.  Lord,  17  Wend.  290,  18 

Wend.  125 - 6' 

V.  New  York  &  S.  L  Ferry 
Co.  8  Jones  &  S.  232, 

245 480' 

V.  New  York  &  S.  L  Ferry 
Co.  8  Jones  &  S.  232, 

246 480^ 

V.  Sheffield,   71  Wall.  189, 

IS  L.  ed.  416 342' 

V.   Starin,   106  N.  Y.  1,  8 

Cent.  Rep.  54... 885' 

New  York  &  E.  K.  Co.  v.  Skinner, 

19  Pa.  298 59P 

New  York  &  II.  R.  Co.  v.  Kip,  46 

N.  Y.  546. 89» 

New  York  Cable  R.  Co.  v.  New 
York,   104  N.  Y.   1,  6 

Cent.  Rep.  56 95^ 

New  York  C.  &  H.  R.  R.  Co.,  Be, 

15  Hun,  63. 90' 

New  York  Elev.   R.  Co.,  Be,  36 

Hun,  427. 435^ 

New  York,  H.  &  N.  R.  Co.  v. 
Boston,  H.  &  E.  R.  Co. 

36  Conn.  196.. 89' 

New  York,  L.  E.  &  W.  R.  Co.  v. 
Haring,47N.  J.  L.  137, 

54  Am.  Rep.  123 491' 

New  York  Nat.    Bank  v.   New 
York  Elevated  R.  Co. 

24  Fed.  Rep.  114 85 

New  York  Rubber  Co.  v.  Roth- 
ery  (Sup.  Ct.)  32  N.  Y. 

S.  R.   905 3603 

Niblett  V.  Nashville,  12  Heisk.  6S4     29' 
Nicholas  v.    Chamberlain,    Cro. 

Jac.    121....  175',  4185,  574-' 
Nichollsu.  Wentworth,  100  N.Y. 

455,  1  Cent.  Rep.  737.   234'» 
Nichols  V.  Boston,  98  Mass.  39, 43 

292«,  550« 

V.  Chicago,    St.    P.,  M.    & 

O.  R  Co.  36  Minn.  452  669^ 

».  Luce,  24  Pick.  103 167' 

V.  Luce,  24  Pick.  104 168« 

V.  Marsland,  L.  R,  10  Exch. 

255.. 273 

V.  Washington,    O.    &   W. 
R.    Co.   83  Va.    99,  5 

Am.   St.  Rep.  257 202 

Nicholson  v.  Erie  R.  Co.  41  N.Y. 

525 ..-.24',  253,  263 

Nickerson  v.  Brackelt,  10  Mass. 

212 540' 

D.Tirrell,  127  Mass.  236.193,  56S3 


Niebaus  v.  Shepherd,  26  Ohio  St. 

40 399'» 

V.  Shepherd.  26  Ohio  Si.  45  397' 

Niles  5.  Martin,  4  Mich.  557 339* 

V.  Patch,  13  Gray,  254 378'  ' 

V.  Patch,  13  Gray,  257 393' 

Nimsw.  Troy,  59  N.  Y.  500 

124',  3263,  330^ 

Niskern  v.  Chicago,  M.  &,  St.  P. 

R.  Co.  22   Fed.    Rep. 

811 666* 

Nitro-Glycerine  Ca.se,  82  U.  S.  15 

Wall.  524, 21  L.ed.  206 

133',  137« 

Nitro-Phosphate  &  O.  C.  M.  (Jo. 

V.    London  &    St.    K. 

Docks  Co.  L.  R.  9  Ch. 

Div.   503 2708,  QQQi 

Nitzell  V.  Pascball,  3  Rawle,  76, 

82.. 571',  581* 

Ni.xon  V.  Biloxi  (Miss.)  5  So.  Rep. 

6-21 76* 

V.  Waller,  41  N.  J.  Eq.  103, 

4  Cent.  Rep.    875 3933 

Noble  V.  Richmond,  31  Gratt.  271    100' 
Noe  V.  Chicago,  B.  &  Q.    R.  Co. 

76  Iowa.  300.4:535,  434',  435' 
Nolan  V.  New  York.  N.  H.  &  H. 

R.  Co.  53  c;onn.  416,  1 

NewEriff.  Rep.  826.30',  31' 
«.  Shickle,  3'^M.).  App.  300  1366 
Noonan  v.  Albany,  79   N.  Y.  470 

292  ■',  297S  304* 
V.   Albany,  79  N.  Y.  475, 

476 

292*,  311*,  320',  325»,  326* 
Norcross  v.  Thomas,  51  Me.  503.  153' 
Norfleet  v.  Cromwell,  70  N.  C.  634  229' 
Norfolk  V.  Cooke,  27  Gratt.  430, 

435.. --   359' 

Norfolk  &  W.  R.  Co.  v.  Jackson, 

(Va.)  8  S.  E.  Rep.  370  145' 
Norling  v.  Aliee  (N".  Y.)  31  N.  Y. 

S.  R.  412 123' 

NorrisB.  Haverhill,  65  N.  H.  89.    131^ 
V.  Kohler,  41  N.  Y.  42.... 612'  * 
Norristown    v.     Moyer,    67    Pa. 

355.... 331» 

North  Birmingham  Street  R.  Co. 

V.  Calderwood  (Ala.)  7 

So.  Rep.  360. 300,  364=« 

North  Eastern  R.  Co.  v.  Wan  less, 

L.  R.  7  H.  L.  12 1503 

Northern  Transp.  Co.  v.  Chicago, 

99  U.  S.  635,  25  L.  etl. 

336 38',  190',  3075 

308*,  389^,  390',  464',  478' 
North  Shore  R.  Co.  v.  Pion  (Eng. 

P.  C.)   12  Montreal  L. 

N.  395 359' 


Ixx 


TABLE    OF    CASES. 


North  Star,  The,  106  U.  S.  17,27 

L.  ed.  yi. 369' 

North  Vernon  v.  Voegler,  89  Ind. 

79 312' 

V.  Voegler,  103  Ind.  314,  1 

West.  Rep.  566. 

73^  247',  311,  332' 

North  Yarmouth  v.  Skillings,  45 

Me.  133 53r 

V.  Skillings,  45  Me.  143...  532« 
Norton  v.  Scholefield,  9  Mees.  & 

W.  665 288' 

V.  Wiswall,  26  Barb.  618.412,  62' 
Norway  Plains  Co.  v.  Bradley,  52 

N.  H.  86 389« 

Norwich  v.  Breed,  30  Conn.  547.     118 

Nott  V.  Fursh,  2  Or.  237. 485 

Nourse  v.  Nourse,  116  Mass.  101.   183-* 

Nowlin  V.  Whipple,  79  Ind.  481.   182«^ 

V.  Whipple,    120  Ind.  596, 

6  L.  R.  A.  159 182'  ' 

Noyes  v.  Boscawen,  64  N.  H.  361, 

5NewEag.  Rep.  70..    127* 

V.  Colby,  30  N.  H.  143  595',  633^ 

1).  Shepherd,  30  Me.  174...     70' 

V.  Stillman,  24  Conn.  15 . . .      56' 

Nugent  V.  Boston,  C.  &  M.  R.  Co. 

80  Me.  62,  77,  5  New 

Eng.  Rep.  865 49' 

Nute  v.  Boston  Co  op.  Bldg.  Co. 

149  Mass.  465 244* 

Nutter  V.  Gallagher  (Or.)  24  Pac. 

Rep.  250 

402',  403^  405',  407^ 

Nye  V.  Hoyle,  120  N.  Y.  195....   420* 

O. 

Cakes  v.  Spaulding,  40  Vt.  347.. 

...594«,  617',  619^ 

Oakham  v.    Holbrook,  11   Cush. 

299- 41*,  1483 

Oakland   R.    Co.  v.  Fielding,  48 

Pa.  321-. 488* 

V.  Oakland,  B.  &  F.  V.  R. 

Co.  45  Cal.  365. 487^ 

O'Brien  v.  Capwell,  59  Barb.  497     61* 
V.  Norwich  &  W.  R.  Co.  17 

Conn. 372 477^ 

V.  Norwich  &  W.  R.  Co,  17 

Conn.  375... 77* 

V.  St.  Paul,  18  Minn.  176. 

29P,  292'* 

V.  St.  Paul,  25  Minn.  331. 

297'  *,  3045 

«.  St.  Paul,  25  Minn.  332  .  326* 
O'Callaghan  v.  Bode  (Cal.)  24  Pac. 

Rep.  269 2234 

Cecum  Co.  V.  Sprague  Mfg.  Co. 

34  Conn.  539 648" 


Ocean  Grove  Camp  Meeting  Asso. 

D.  Asbury  ParkComrs. 

40   N.    J.    Eq.    447,    2 

Cent.  Rep.  180. ...282',  454» 
O'Connor  v.  Fond  du  Lac,  A.  & 

P.  R.  Co.  52  Wis.  526, 

38  Am.  Rep.  753 148^ 

V.  Pittsburgh,  18  Pa.  1.87..  305^ 
Odell  V.  Schroeder,  58  111.  353...  3373 
O'Dounell  v.  Kelsey,  4  Sandf.  202, 

affirmed  10  N.  Y.  412.   360' 
Ogburn  v.  Connor,  46  Cal.  346..    299 

Ogden  V.  Grove.  38  Pa.  491 174=' 

V.  Jennings,  62  N.  Y.  526 

....169*,  1713 

«.  Jennings,  62  N.  Y.  531. 

219',  575' 

Ogg  ■».  Lansing,  35  Iowa,  495,  14 

Am.  Rep.  499..-.335^  337' 
Ohio  &  M.  R.  Co.  V.  Hecht,  115 

Ind.  443.... 6573 

V.  Shanefelt,  47  111.  497...  665* 
Oil  Creek  &  A.  R.  Co.  v.  Keigh- 

ron,  74  Pa.  316 652' 

Oleson  V.  Brown,  41  Wis.  415 

635'2,  637' 

O'Linda    v.    Lothrop,    21    Pick. 

292  125- 

Olive  V.  Stale^Se  Ala.' 88^4"  lVr' 

A.  33 257=, 

375^  403^  404'  ^  407',  460" 
Oliver  v.    Dickinson,   100  Mass. 

114.. 167' 

V.  Northeastern    R.    Co.  9 

Moak,  Eng.  Rep.  350.   252» 
V.  Piatt,   44  U.  S.  3  How. 

333,  11  L.  ed.  622  ....    230' 
^|.  Worcester,  102  Mass.  489 

121^  34P,  345'' 3 

V.  Worcester,  102  ]\lass.  489, 

500-. 3433,  348' 

Olmstead  v.  Abbott,  61  Vt.  281..   4213 
Olmsted  v.  Loomis,  9  N.  Y.  423.   42P 

V.  Rich,  53  Hun,  638 587 

Olney  v.  Fenner,  2  R.  I,  211,  57 

Am.  Dec.  711 3553,  4273 

Olson  V.  Merrill,  42  Wis.  203.... 

389-,  405',  412' 

V.  Merrill,  42  Wis.  213 556' 

V.  St.  Paul,  M.  &  M.  R.  Co. 

38  Minn.  419.290'  297*,  304^ 
Omaha  &  R.  V.  R.  Co.  v.  Brown, 

16  Neb.  161 435* 

V.  Standen,  22  Neb.  343  ..  478^ 
Omaha  G.  Smelt.  &  Refin.  Co.  v. 

Tabor,   13  Colo.  41,  5 

L.  R.  A.  236 2013 

Omaha  Horse   R.    Co.   v.   Cable 

Tramway  Co.  30  Fed. 

Rep.  324 88* 


TABLE    OF    CASES. 


1> 


Omaha  Hotel  Asso.  v.  Walter,  23 

Neb.  280 108=^ 

O'Malley  v.  St.  Paul,  M.  &  M.  R. 

Co.   (Minn.)  45  N.  W. 

Kep.440 29'  ' 

Omslaer  ■».  Philadelphia  Co.   31 

Fed.  Rep.  354 659' 

Onderdunk    v.    Smith,   27    Fed. 

•  Rep.  874. 568^ 

O'Neil  V.  Blodtrett.  m  Vr.  213..-   2o7' 
V.  Harkins,  8  Bush,  650...     38' 
O'Neill   V.    Annett,  27  N.  J.   L. 

290 564 

V.  New  York,  O.  &  W.  R. 

Co.   115  N.  Y.   579,  5 

L.  R.  A.  591 647-',  GoS'^ 

Onstolt  V.  Murray,  22  Iowa,  457.   23b'' 
Orinan  v.  Day,  5  Fla.  385,  392... 

213^  216^ 

Orme  v.  Richmond,  79  Va.  86. ..    100' 
Ormerod  v.  Todmorden  J.  S.  Mill 

Co.  L.  R.  11  Q.  B.  Div. 

155 456^ 

O'Rourke  v.  Hart,  7  Bosw.  511,  9 

Bosw.   301 --     39'' 

v.  Peck,  29  Fed.  Rep.  223.    566- 
V.  Peck,  40  Fed.  Rep.  907 

19-,  567-2,  5634 

Ortmayer  «.  Johnson,  45  111.  469.   256^ 
Osage  City  v.  Larkins,  40  Kan. 

206,  2  L.  R.  A.  56..-.  29' 
Osborn  v.   Union  Ferry  Co.  53 

Barb.  629 .75\  4753 

V.  Wise,  7  Car.  &  P.  761..    158' 
Osborne  v.  Brooklyn  City  R.  Co. 

5Blatchf.  366 76' 

V.  Detroit,  32  Fed.  Rep.  36 

130^  342' 

Osburn  v.   Longsduff,  70  Mich. 

127,  14  West.  Rep.  212  81'  - 
Osgood  V.  Green,  33  N.  H.  318..  eOl'* 
Oshkosh  V.  Milwaukee  &  L.  W. 

R.  Co.  74  Wis.  534...  88^ 
Ott  V.  Kreiter,  110  Pa.  370, 1  Cent. 

Rep.  387....161«,  418«,  419^ 
Ottawa    Gas-Light     C.     Co.     v. 

Graham,  28  111.74... 

7^  8^  155'.  278 

Ottumwa  V.  Parks,  43  Iowa,  119 

108\  113' 

Overington  v.  Dunn,  1  Miles,  39.    612' 
(Jverton  v.  Sawyer,   1  Jones,  L. 

308. 2953 

Owen  V.  Bartholomew,   9  Pick. 

520 1633 

V.  Chicago,  10  111.  App.  465  342' 
D.  Dunchvide,  Pr.  2  Jac.  I. 

B.  R 530' 

«.  Field,  102  Mass.  90 5803-* 

V.  Field,  102  Mass.  114 571' 


Owings  V.  Jones,  9  Md.  108.. 45',      51 
Oyshterbank  v.  Gardner,  17  Jones 

&S.  263 135' 


Packard  v.  Rvder,  144  Mass.  440, 
4  New  Eng.  Rep.  246 

536^  541» 

Packer  v.  Bird,  71  Cal.  134 388^ 

V.  Welsted,  2  Sid.  39 573^ 

Paducah  &  E.  R.  Co.  v.  Cora.  80 

Ky.  146 70' 

Paducah  &  M.  R.  Co.  v.  Hoehl, 

12  Bush    (Ky.)41 365^ 

Paget  V.  Milles,  8  Doug.  43 500'^ 

Paige  V.  Rocky  Ford  Canal  &  I.  , 

Co.  83  Cal.  86 ' 

257'-,  258«,  41 1«,  462-3 

Paine  v.  Woods,   108  Mass.   160. 

173. 443« 

V.  Woods,  108  Mass.  168..   380" 
V.  Woods,  108  Mass.  173.. 

413'.  453' 

Painter  v.  Pittsburgh,  46  Pa.  213  323* 

Palmer  v.  Andover,  2  Cush.  600.   366 

V.  Delaware  &  H. Canal  Co. 

120  N.  Y.  170 363^ 

V.  Dodd,  64   Mich.  474,    7 

West.  Rep.  797 393^ 

V.  Farrell,  129  Pa.  162.387«,  3953 
«.  Fletcher(Fleshees)l  Lev. 

122.  1  Sid.  167  ....175',  191 

».  Lincoln,  5  Neb.  136 114' 

V.  Mulligan,  3  Cai.  307,  2 

Am.  Dec.  270 

3773,  389-2,  4051,  416 

V.  Mulligan,  3  Cai.  307,  315  mV 
V.  Mulligan,  3  Cai.  315...   403' 

v.  Mulligan,  3  Cai.  319 355^ 

V.  Wright,  58  Ind.  489 4279 

Palmyra,  The.  25  U.  S.  12  Wheat. 

1,  17,  6  L.  ed.  531,  536  368» 

Pantam  t.  Isham,  1  Salk.  19 6113  •• 

Pantou  V.  Holland,  17  Johns.  92,  8 

Am.  Dec.  369 

38-2,  196^  1961    2004  5 

V.  Holland,  17  Johns.  92-98     12' 
Parish  v.  Kaspare,  109  Ind.  586, 

7  West.  Rep.  369 

1763,  i8i5_  182'  «,  244' 

Park  V.  Chicago  &  S.  W.  R.  Co. 

43  Iowa.  636 79' 

V.  O'Brien,  23  Conn.  339.. 

..6ir,  612* 

Parker  v.  Boston  &  M.  R.  Co.  3 

Cush.    107 ..266,  2U6' 

V.  Cohoes,  10  Hun,  531.  af- 
firmed, 74N.  Y.  610..    367 


Ixxii 


TABLE   OF   CASES. 


Parker  v.  Cutler  Mill  Dam  Co.  20 

Me.  353 510^ 

V.  Foote,  19  Wend.  309... 

180»,  427'  1" 

V.  Foote,    19    Wend.   309, 

315 427" 

V.  Griswold,  17  Conn.  288, 

43  Am.  Dec.  739 45P 

V.  Griswold,  17  Conn.  300.  443« 
V.  Larsen    (Cal.)    24   Pac. 

Rep.  989 3501 

V.  Lowell,  11  Gray,  353 . .  - .  348^ 
V.  Macon,  39  Ga.  725  .342\  343^ 
V.  Nightingale,  6  Allen,  341 

r. 2291,  230 

V.  Portland    Pub.    Co.    69 

Me.  173 18^  19',  24 

V.  West  Coast  Packing  Co. 
17  Or.  510,  5  L.  R.  A. 

61 561' 

V.  Winnipiseosree  Lake  C. 
&W.Mfg^Co.  67U.  S. 
2  Black,  545,  17  L.  ed, 

333 79' 

Parkhurst  v.  Foster,  1  Ld.  Raym. 

480 -.     14 

Parkins  v.  Dunham,  3  Strobh.  L. 

224 5793 

Parks  V.  Newburyport.  10  Gray, 

28 290', 

295',  2964  6^  303-2    3035^  3051 
Parnaby  v.  Lancaster  Canal  Co. 

11  Ad.  &  El.  223 

-.566^3,  5683  4 

Parrish  «.  Stephens.  1  Or.  73 79' 

Parrott  v.  Barney,  1  Sawy.  442..    440- 

Parsons  v.  Clark,  76  Me.  478 510^ 

V.  Johnson,  68  N.  Y.  65...    158« 
V.  State,  26  Tex.  App.  192.     72' 
Partch  V.  Spooner,  57  Vt.  583...   582' 
Partenheimer  v.  Van   Order,  20 

Barb.  479 594^  '",  627^ 

Partlow  V.  Haggarty,  35  Ind.  178 

616=,  617',  620« 

Partridge  v.  Gilbert,  15  N.  Y.  601, 

612. 2385 

V.   Gilbert,    15   N.   Y.   614 
209»  «,  212,  2132,  216*, 
218.   2383,   5748^   5751^    5705 
V.  Scott,  3  Mees.  &  W.  220 

...198,  200' 

Pastene  v.  Adara.s.  49  Cal.  87-20\  660^ 
Patee  v.  Adams,  37  Kan.  133.6323,  633* 
Patonia  Land   Asso.    v.  Feenfer 

(N.  J.)  5  Cent.  Rep.  640     77^ 
Patrick  v.  Ruffners,  2  Rob.  (Va.) 
209,  40  Am.  Dec.  745. 

4803,  4873 

Patten  v.  Northern  Cent.  R.  Co. 

33  Pa.  426 664^^ 


Patterson  v.  Arthurs,  9  Watts,  154   166> 

V.  Gelston.  23  Md.  432 396^ 

Pattison  v.  Richards.  22  Barb.  146  410^^ 
Patton  V.  St.  Louis  &  S.  F.  R.  Co. 

87  Mo.   117,    1    West. 

Rep.  760 6653 

Paul  V.  Hazelton,  37  N.  J.  L.  106  495^ 
V.   Summerhayes,  L.  R.  4 

Q  B  Div.  9 543' 

Pavonia   Land   Asso.  v.  Feenfer 

(N.J.)  5  Cent.  Rep.  640     98'^ 
Paxson  V.  Sweet,  13  N.  J.  L.  196.     69^ 

Payne  v.  English,  79  Cal.  540 391* 

V.  Mckinley,  54  Cal.  532 .. 

80^  47P 

«.  Shedden,  1  Mood.  &  R. 

382 262* 

Peachey  v.  Rowland,  13  C.  B.  182, 

23  L.  J.  N.  S.  C.  P.  81     395 
Pearce  v.  McCleneghan,  5  Rich. 

L.  178 574* 

V.  Scotcher,  L.  R.  9  Q.  B. 

Div.  162 4993 

Pearsall  v.  Post,  20  Wend.  Ill, 

128. 188^ 

V.  Post,  20  Wend.  Ill,  22 

Wend.  425 560' 

Pearson  v.  Rolfe,  76  Me.  380.414',  558 
D.  Spencer,  1  Best  &S.  571. 

note 164 

Peck  V.  Conway,  119  Mass.  546. .    160*- 
V.  Goodberlett,  109  N.  Y. 

180,  12  Cent.  Rep.  199  297'  ^ 
V.  Herrington,  109  111.  611.   262' 
Peddicord  v.  Baltimore,  C.  &  E. 

M.  P.  R.  Co.  34  Md. 

463. 92^ 

Peik  V.  Chicago  &  N.  W.  R.  Co. 

94  U.  S.  164,  24  L.  ed. 

97-. 97^ 

Pelton  V.  East  Cleveland  R.  Co. 

22  Ohio  L.  J.  67,  affd. 

4  Harvard  Law  Rev. 

258 2513- 

Pendleton  v.  Fay,  2  Paige,  202..   242' 
Pennsylvania  v.  Wheeling  &  B. 

Bridge  Co.  54  U.  S.  13 

How.  518.  561,   14  L. 

ed.  249,  267     

79',  466«.  4778,  478^ 

«>.  Wheeling  &   B.   Bridge 

Co.  59  U.  S.  18  How. 

421,  15  L.  ed.  435  .... 

463'.  466',  478^  479* 

Pennsylvania  &  O.  Canal  Co.  v. 

Graham,  63  Pa.  290..    557* 
Pennsylvania  Co.  v.  Marion,  104 

Ind.  239,  2  West.  Rep. 

234 19* 

V.  Roney,  89  Ind.  453 5* 


TABLE   OF   CASES. 


Ixxiii 


Pennsylvania  Co.  v.  Whitlock,  99 

Ind.   16 653 

Pennsylvania  Coal  Co.  v.  Sander- 
son, 113  Pa.  126,  4 
Cent.  Rep.  480,  481... 
..148'  \  154 

V.  Sanderson,  113  Pa.  126, 

4  Cent.  Rep.  475 

272^  280,  281^ 

282^283^  293^  ',  294^  295^ 

V.  Sanderson,  113  Pa.  126, 

4  Cent.  Rep.  483 545* 

Pennsylvania  R.  Co.  v.  An^el,  41 

N.  J.  Eq.  316,  S^Cent. 

Rep.  86.... 90^ 

B.  Aspell,  23  Pa.  147 365' 

B.Baltimore  &N.  Y.  R.  Co. 

37  Fed.  Rep.  129 465*5 

V.  Henderson,  43  Pa.  449..    128* 
».  Hope,  80  Pa.  373,  21  Am. 

Rep.  100 652' 

V.  Jones,  50  Pa.  417  ..164',  171^ 

V.  Kerr,  62  Pa.  353 049,  650 

V.  Matthews,  36  N.  J.  L.  531   363^ 
V.  3Iiller,    112     Pa.    34,    3 

Cent.  Rep.  127..-288«,  460' 
«.  Mish,    115    Pa.     514.   4 

Cent.  Rep.  276.... 96^  251' 
V.  Peters,   116    Pa.   206,  8 

Cent.  Rep.  405. 361* 

Penniman  v.  N.  Y.  Balance  Co. 

13  How.  Pr.  40 79' 

Penny  Pot  Landing,  16  Pa.  79  ..  560' 
Penruddock's  Case,  5  Coke,  100  b  55 
Penruddock's  Case,  5  Coke,  101.  648^ 
PensacolaGasCo.  v.  Pebley(Fla.) 

5  So.  Rep.  593 14',  80* 

Pentland  v.  Keep,  41  Wis.  490  ..  181^ 
People  V.  Brooklyn,  65  N.  Y.  349  290' 

V.  Canal     Appraisers,      13 

Wend.  355. 530^,  53P 

V.  Canal  Appraisers,  33  N. 

Y.  461. 

376= «,  386',  389^  5326 

V.  Central  R.  Co.  42  N.  Y. 

315 397' 

V.  Chicago  West  Div.R. Co. 
118  111.  113,  5  West. 
Rep.  517. 87* 

V.  Civil  Service  Super- 
visory and  Examining 
Boards,  3  How.  Pr.  N. 
S.  43,  44,  47 440^ 

V.  Cunningham,   1    Denio, 

524 75',  247^  250,  560' 

V.  Cunningham,  1    Denio, 

536 7P 

V.  Decker  (Sup.  Ct.)  32  N. 

Y.  S.  R.  956 5373 

«.  Duncan.  41  Cal.  508.-..    487' 


People  V.  Duncan,  41  Cal.  510...    485 
V.  Erwin,  4  Denio,  129.-48',  52* 
V.  Gutchess,  48  Barb.  656. 

463S  512» 

V.  Haines,  49  X.  Y.  587...    292' 

V.  Hiizen,  52  llun,  370 541* 

V.  Ilazen,  121  N.  Y.  313. .537^  * 
V.  Horton,  64  N.  Y.  610...  468' 
«.  Jackson,  7  Mich.  432...  70^^ 
V.  Jones,  112  N.  Y.  598...  400* 
V.  Kerr,  27  N.  Y.  188.. 35^  247* 
V.  Kirsch,  67  Mich.  539,  13 

West.  Rep.  62.... 535*,  540* 
v.  Lawrence.  54  Barb.  589  93* 
V.  Lowndes,  55  Hun,  409.. 

385^  435',  494',  537' 

V.  Mauran,  5  Denio,  389..  88'' 
V.  New  York,  18  Abb.  N. 

C.  123 247* 

V.  New  York,  59  How.  Pr. 

277 99' 

V.  Piatt,  17  Johns.  195,  209 

210 501^  530' 

V.  Piatt,  17  Johns.  195,  211 

..355*,  377',  452^  463^  550» 
V.  Piatt,  17  Johns.  216,  8 

Am.  Dec.  382 416' 

V.  Reed,  47  Barb.  235 531' 

V.  St.  Louis,  10  III.  351.377^  468* 
V.  Tibbetts,  19  N.  Y.  523.. 

376^  378* 

.  V.  Townsend,  3  Hill,  479..   478* 
V.  Vanderbilt,  26  N.Y.  287  468' 
People's  Ice  Co.  v.  The  Excelsior, 

44  Mich,  229 261',  517' 

Peoria  v.  Johnston,  56  111.  51 580* 

V.  Simpson,  110  Hi.  294,  300     45* 
Peoria  &  R  I.  R.  Co.  v.  Birkett, 

62  111.333 89* 

Perdue  v.  Chinguacousv  Twp.  25 

U.  C.  Q.  B.  61.. -.327'.  361* 
Peregoy®.  McKissick,79Cal.  572.446'  * 
Pere    Marquette    Boom.    Co.    v. 

Adams,  44  3Iich.  404.  517* 
Perez  v.  Rabaud,  76   Tex.  191,  7 

L.  R.  A.  620 61* 

Perkins  «.  Dow,  1    Root,  535 442* 

V.   Dunham,  3  Strobh.  L. 

224 -.    571' 

Perley  v.  Chandler,  6  Mass.  454.   258' 
V.  Eastern  R.  Co.  98  Mass. 

414 653',  654',  6Gt' 

V.  Langley,  7  N.  H.  233...    189* 
Permoli  v.  Municipality  No.  1  of 
New  Orleans,  44  U.  S. 
3  How.  589,  11  L.  ed. 

739 372' 

Prerogative  Case,  12  Coke,  13...        6. 

Perrin  v.  Gartield,  37  Vt.  304....    188-* 

V.  Garfield,  37  Vt.  310....    263* 


Ixxiv 


TABLE    OF    CASES. 


Periine  v.   Taylor,  43  N.  J.  Eq. 

128!.. 1542 

Perry  v.  New  Orleans,  M.  &  C. 

R.  Co.  55  Ala.  413,  424     92i 
v.  Phipps,  10  Ired.  L.  259.   628' 

V.  Pratt,  31  Conn.  442 SO?' 

V.  Worcester,  6  Gray,  544. 

292^  311S  316',  336^  ^  349* 
Peter  «.  Kendal,    6  Barn.  &  C. 

703. 480-  9 

Peters  v.  New  Orleans,  M.  &  C. 
R.  Co.  56  Ala.  528 . . . . 

403^  404'-',  408' 5 

Peterson  ■».  Kier,  2  Pittsb.  Rep. 

191 80« 

V.  McCullough,  50  Ind.  41.   427^ 
».  The    Cliandos,   4     Fed. 

Rep.  649 370' 

Pettengill  v.  Yonkers,  116  N.  Y. 

558 ....310%  318',  337' 

Pettigrew  v.  Evansville,  25  Wis. 
223,  227,  3   Am.    Rep. 

50 

147^  2915,  3003  5,  304',  322' 
7).  Evansville,  25  Wis.  223, 

231,  232,  236 2922,  4355 

V.  Evansville,  25  Wis.  229.  299^ 
Pettingill  v.  Porter,  8  Allen,  1...  167'^ 
Peverly  v.  Boston,  136  Mass.  366  365' 
Pew  «.  Buchanan,  72  Iowa,  637.  224^ 
Peyton  v.  London,  9  Barn.  &  C. 

729. 192 

V.  St.  Thomas   Hospital,  9 

Barn.  &  C.  725 233^ 

V.  Texas  &  P.  R.  Co.  41  La. 

Ann.  861 5^ 

Phelps  V.  Mankato,  23  Minn.  276  348* 
V.  Nowlen,  72  N.  Y.  39,  28 

Am.  Rep.  93 12',  148^ 

V.  Racey,  60  N.  Y.  10..533^  542 
Pheyseyy.Vicary,  16  Mees.  &  W. 

484. 174«,  24P 

Philadelphia  &  R.  R.  Co.  v.  An- 
derson, 94  Pa.  351-155'S  332' 
li.  Hendrickson.  80  Pa.  182  6653 
V.  Hendrickson,  80  Pa.  183, 

21  Am.  Rep.  97 669^ 

«.  New   England    Transp. 

Co.  24  Fed.  Rep.  505.   369^ 
«.  New  York,  38  Fed.  Rep. 

159 3903 

«.  Yeiser,  8  Pa.  366 133' 

v.  Yeiser,  8  Pa.  374 440- 

Philadelphia  &  T.  R.  Co.,  Re,  6 

Whart.  25 92^ 

Philadelphia  R.  Co.  i).  Schultz,  93 

Pa  345  665'* 

Philadelphia,  W.  &  B.'  R."  Co.'  V. 
Constable,  39  Md. 
149 654' 


Philadelphia,  W.  &  B.  R.  Co.  v. 
Davis,  68  Md.  261,  10 

Cent.  Rep.  553 329* 

Philbrick  v.  Ewing,  97  Mass.  133   169« 
Phillips  V.    Bordman,   4    Allen, 

147 ....211,  214',  233* 

«.  Bowers,  7  Gray,  24 163' 

i\  I)e  Wald.  79  Ga.  732...  612^ 
V.  Mankato,  23  Minn.  276.  310^ 
V.  Phillips,  48  Pa.  178.... 

166',  164',  5748 

«.  Ritchie    County   Ct.  31 

W.  Va.  477 3633 

V.  Sherman,  64  Me.  174.283',  284 
«.Waterhouse,  69  Iowa,  199 

302',  3033 

Phinizy  v.  Augusta,  47  Ga.  263.. 

..290%  302',  321',  327= 

Phipps  1}.  Johnson,  99  Mass.  26.. 

158«,  265* 

Phoenix   Ins.    Co.  v.  Continental 

Ins.  Co.  87  N.  Y.  400.    160* 
Pickard  v.  Howe,  12  Met.  198...    603* 
1).  Smith,  10  C.  B.  N.  S.  470   1503 
Pickens  ti.  Diecker,  21   Ohio  St. 

212 610*,  6I93 

Pickering  v.  Orange,  2  111.  492..    606* 
V.  Stopler,  5  Serg.  &  R.  107  419* 
Pickman  v.  Peabody.  145   Mass. 
480,  5  New  Eng.  Rep. 

394 4583 

Pierce  v.  Cleland,  133  Pa.  189,  7 

L.  R.  A.  752 1643,  1714 

V.  Dart,  7  Cow.  609 803,  4594 

V.  Drew,  136  Mass.  75,  49 

Am.  Rep.  7 97- 

V.  German    Sav.   &    Loan 

Soc.  72  Cal.  180 54* 

«.  Keator,  70  N.  Y.  421...  158^ 
V.  Selleck,18Conn.321.169«,  425' 
v.  Whitcomb,  48  Vt.  127.. 

191,  233*,  25' 

B.  Worcester  &  N.  R.  Co. 

105  Mass.  199 654^ 

Pierce  Mill  Co.  v.  Koltermann,  26 

Neb.  722 433« 

Pierre  «.  Fernald,  26  Me.  436  ...    180= 
Pierrepont  v.  Loveless,  72  N.  Y. 

211,  216  ....389^  403',  405' 
Pierson  d.  Glean,  14  N.  J.  L.  37.     55 

V.  Post,  3  Caines,  175 543' 

Piggott  1).  Eastern  Counties  R.  Co. 

3C.  B.  228 664" 

v.  Eastern  Counties  R.  Co. 

3C.  B.  229 648*,  654' 

Pigott  V.  Lillv.  55  Mich.  150  ....       5- 
Pillsbury  v.  Brown,  82  Me.  450.. 

703,  2344^  247= 

V.  Moore,  44  Me.  154 

-...56',  79*,  425*,  427 \  571' 


TABLE    OF    CASES. 


Ixxv 


Pinckard  v.  :\rilmine,  76  111.  453.    184'^ 
Pine  City  v.  iluncli  (Minn.)  6  L. 

K.  A.  763,  and  7iote...  76^ 
Pingree  v.  McDutTe,  56  N.  H.  306  167' 

Pinuey  v.  Luce,  44  Minn.  367 360- 

V.  Luce  (Minn.)  46  N.  W. 

Rep.  561 436^ 

Piicher  v.  Dove,  99  Ind.  177 183*^ 

Pitkin  V.  Olmstead,  1  Root,  217.   531« 
Pitts  V.  Lancaster  Mills,  13  Met. 

156.. ..424^  448« 

Pittsburgh  v.  Grier,  23  Pa.  54... 

..342',  345',  566',  567\  610« 
V.  Scott,  1  Pa.  309.--.126S  475- 
Pittsburgh  &  L.   E.    R.    Co.    v. 

Bruce,  102  Pa.  23 265' 

Pittsburgh  &  State  Line  R.  Co.  v. 
Rotbschild(Pa.)4Cent. 

Rep.  107 264' 

Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 

Campbell,  86  111.  443-.   648^ 
V.  Conn,    104    Ind."    64,    1 

West.  Rep.  901.- 106^ 

i\  Culver,  60  ind.  469 653' 

v.  Hixon,  79  Ind.  Ill 653' 

V.  Hixon,  109  Ind.  235.  8 

West.  Rep.  888-. 648^ 

1).  Jones,  86  Ind.  496_.241',  665- 

1).  Nelson,  51  Ind.  150 666= 

V.  Shields,  47  Ohio  St.  — , 

8L.  R.  A.  464.. 29' 

v.  Spencer,  98  Ind.  186  ...   660^ 
«.  Williams,  74  Ind.  462  ..   155^ 
Pittsburgh,  Ft.  W.  &  C.  R.  Co. 
V.    Bingham,  29   Ohio 

St.  364  --- 24'.  26^ 

Pixley  V.  Clark,  32  Barb.  268 287* 

v.  Clark,  35  N.  Y.  520.271, 

280-',  430-,  440',  545',  548^ 
Plant  V.  Long  Island  R.   Co.  10 

Barb.  26 73^ 

Piatt  V.  Eggleston,  20  Ohio  St. 

414 --.-    237 

u  Pennsylvania  Co.  43  Ohio 

St.  223,  1  West.  Rep.  11  265' 
Platz  V.  Cohoes,  89  N.  Y.  224...  440'' 
Plimpton  V.  Converse,  42  Vt.  712 

- 176^,  5732 

Phimer  v.  Harper,  3  N.  H.  88.-.     55 

V.  Lord,  9  Allen,  455 183^ 

Plumleigh  v.  Dawson,  6  111.  544, 

41  Am.  Dec.  199 425^ 

Plumley  v.  Birge,  124  Mass.  57..   632^ 
Plymouth  r.    Milner,    117    Ind. 

324... 128^ 

Poeppers  v.  Missouri,  K.  &  T.  R. 

Co.  67  Mo.  715 654' 

Polden  V.  Bastard,  4  Best  &  S. 

258,  264 1862 

Pollard  V.  Barnes,  2  Cush.  191...   425= 


Pollard  V.  Hagan,  ii  U.  S.  3  How. 
213,  11  L.  ed.  565    ... 

371\372', 

378-,   379%   492',  493'.  494» 

PoUett  V.  Long,  56  N.  Y.  200 

432',  650.  655' 

Pollexfen  v.  Crispin,  1  Vent.  122  498- 
Polly  V.  McCall,  37  Ala.  20-32  ..  438" 
Pouifret  v.  Ricroft,  1  Saund.  323, 

voi^. 168\  169^ 

Pond  V.  Metronolitan  E.  R.  Co. 

42  Hun,  .'367 180= 

Pontiac  v.  Carter.  32  Mich.  164..  305- 
Pope  V.  Devereaux,  5  Graj%  409. 

571',  578'  •• 

1).  Kinman,  54  Cal.  3  .404'*,  444'^ 
V.  O'llara,  48  N.  Y.  446..    216' 
r.  O'llara.  48  K  Y.  453  ..    580* 
Popplewell  V.   Pierce,    10  Cush. 

509 

617S  619',  630"  ',  631-,  630'' 
Porter  v.  Durham,  74  N.  C.  767.. 

- 2953,  298%  2995 

V.  North  Mo.  R.  Co.  33  Mo. 

128 73',  93' 

1).  Shehan,  7  Gray,  435 495'^ 

«.  Sullivan,7  Gray,  441, 444  341' 
Porter  County  v.  Dombke,  94  Ind. 

72 128' 

Portland  v.  Richardson,  54  Me. 

46... 108S  1^9',  114' 

Portland  &  W.  Y,.  R.  Co.  v.  Port- 
land, 14  Or.  188. 9P 

Post  V.  Kreischer,  103  N.  Y.  110, 

4  Cent.  Rep.  219 541 « 

v.  Munn,  4  N.  J.  L.  61.538^  539 
V.  Pearsall,  23  Wend.  425- 

--188',  564 

«.  Pearsall, 22  Wend.425,432  188* 

e.  Pearsall,  22  Wend.  438.    15s'^ 

Postlethwaite  v.  Payne,  8  Ind.  104  427'^ 

Potomac  Steamboat  Co.  v.  Upper 

Potomac       Steamboat 

Co.  109  U.S.  672,  27  L. 

ed.  1070 561=' 

Potter  V.  Howe,  141  Mass.  358,  3 

New  Eng.  Rep.  167...   453' 
V.  Menasha,  30  Wis.  492  ..     79' 

V.  White,  6  Bosw.  644 233' 

V.  White,  6  Bosw.  647 213' 

Pottstown  Gas  Co.  v.  Murphy,  39 
Pa    257 

-..'-  8S'l54SY55"'' 278',  388-^ 
Pound  V.  Turck,  95  U.  S.  459,  24 

L.  ed.  525 377^ 

Powell  V  Deveney,  3  Cush.  300..    654' 

V.  Mills,  37  Miss.  691 488= 

T.  Sims,  5  W.  Va.  1 180' 

Power  V.  Athens,  99  N.  Y.  592, 

598 463' 


Ixxvi 


TABLE    OF    CASES. 


Power  V.  Athens.  99  N.  Y.  601,  1 

Cent.  Rep.  181 

Powers'  Ap|ieal,  125  Pa.  1T5 

Powers  V.  Craig,  22  Neb.  621 

6453, 

v.  Harlow,  53  Mich.  507.. 

123', 

V.  Irish,  23  Mich.  429. -W', 

V.  Osgood,  102  Mass.  454_. 

Pratherw.  Jeffersonvllle,  M.  &  I. 

R.  Co.  52  Ind.  36 

».  Lexington,  13  B.  Mon. 

559 - 

Pratt  V.  Atlantic  &  St.  L.  R.  Co. 

42  Me.  579 240^ 

V.  DesMoines  N.  W.  R.  Co. 

72  Iowa,  249 

Pray  v.  Jersey  City,  32  K  J.  L. 

394 

Preables  «.  Hannaford,  18  Me.  106 
Prendorill  v.  Kennedy,  34  How. 

Pr.  416 :--.-- 

Prescott  «.  Williams,  5  Met.  429- 
Presland  v.  Bingbam,  L.  R.  41  Ch. 

Div.'268 

Pressey  r.  Wirtb,  3  Allen,  191  .. 
Preston  v.  Dubuc[ue  &  P.  R.  Co. 

11  Iowa,  15 ...-- 

V.  Navasota,  34  Tex.  684-- 
Pretly  v.  Bickmore,  L.  R.  8  0.  P. 

401.41-',  4S,  49,  52-,  62'" 
Prideaux  v.  Mineral  Point,  43  Wis. 

513 316', 

Prime  V.  Twenty  Third  St.  R.  Co. 

1  Abb.  N.  C.  63. 

Prince  'c.  McCoy,  40  Iowa,  533.. 


556'^ 
665^ 

597^ 

47P 
428-^ 

90^ 
337' 
654- 

91" 

3413 
540-' 

77= 
356' 

179' 
586° 

265' 

184^ 

63 

332' 
1023 

475' 
395' 
602« 

201^ 

540- 


Pulley  V.  Municipality  No.  2,  18 

La.  278.. 396' 

Pumpelly  v.  Green  Bay  Co.  80  U. 

S.  13  W^all.  166.  20  L. 

ed.  557 2915.  4331^  4355 

Purcell  t\  Conrad,  84  Va.  557  ..-   541« 
Putnam  v.  Payne,  13  Johns.  312- 

625'.  627«,  6289' 

Pye  V.  Mankato,  36  Minn.  373,  1 

Am.  St.  Rep.  671 

291'-   297'*    326''  ^' 
Pyer».  Carter," 'l  HiirL  .fc'N.  916 

.168,171, 

17r,   1746,    186^   2413,  574* 
Pyle  V.  Richards,  17  Neb.  181...   299^ 


Q. 

Quarman  v.  Burnett,  6  Mees.  & 

W.  499 1493 

Quimby  v.  Woodbury,   63  N.  H. 

370 6303 

Quincy  v.  Jones,   76  111.  231,  20 

Am.  Rep.  243.38',  198'^  200*" 
Quincv  Canal  Co.  v.  Newcomb,  7 

Met.  276.  283 75\  474^ 

Quinn  1).   Morse,  130  Mass,  317, 

322. 212 

«.  South  Carolina  R.  Co.  29 

S.  C.  381,  1  L.  R.  A. 

682 1471- 

Quintini  v.  Bay  St.  Louis,  64  Miss. 

483 9°- 


Prior  V.  Comstock,  17  R.  I. .. 

Pritchard  v.  Stevens,  6  T.  R.  522 

Proctor  V.  Putnam  Machine  Co. 

137  Mass.  159 

V.  Wells,  103  Mass.  216... 

495'.  536', 

Proprietors  of  Mills  v.  Braintree 
Water  Supply  Co.  149 
Mass.  478,  4L.  R.  A. 

272.. 283^ 

4183,  4543  4  6^  456-2^  4576^  4581 

Prospect  Park  &  C.  I.  R.  Co.,  Re, 

16  Hun,  261 -     90' 

Prosser  ^•.  Ottumwa,  42  Iowa,  509  475' 
I.  Wapello   Co.    18    Iowa, 

327 .---   480-^ 

Protheroe  v.  3Iathews,  5  Car.  &  P. 

581 628« 

Protzman  v.  Indianapolis  &  C.  R. 

Co.  9  Ind.  467 82'  - 

Prowaltain   r.  Philadelphia  (Pa.) 

2  Cent.  Rep.  332 174» 

Pue  V.  Pue,  4  Md.  Ch.  3«6 236« 


R. 


Race  V.  Ward,  30  Eng.  L.  &  Eq. 

187 410» 

Radcliff  V.  Brooklyn,  4  N.  Y.  195 

307«,  3213 

».  Brooklyn,  4  N.  Y.  199-.  409' 

Ragan  v.  McCoy,  29  Mo.  367 485* 

Raiford  v.  Mississippi  &  C.  R.  Co. 

43  Miss.  233 593i' 

Randall  v.  Jacksonville  St.  R.  Co. 

19  Fla.  409,  17  Am.  & 

Eng.  R.  R.  Cas.  184..  93* 
v.  McLaughlin,    10  Allen, 

366. -168^ « 

Randle  v.  Pacilic  R.  Co.  65  Mo. 

332 735 

Randolph  v.  Bloomfield,  77  Iowa, 

50 5493^ 

V.  Braintree,  4  Mass.  315, 

316---- ...495',  532" 

Rankin  v.  Ingwersen,  49  N.  J.  L. 

481.  8  Cent.  Rep.  371- 

..  44^  48^  50,  52',  61',     64^ 


TABLE    OF    CASES. 


Ixxvii 


Eapbo  Twp.  V.  Moore,  68  Pa.  404  33P 
Raritan  W.  P.  Co.  v.  Vegbte,  21 

N.  J.  Eq.  478 427^ 

Ralhke  v.  Garduer,  134  Mass.  14. 

16 295',  348%  3613 

Eawstron  v.  Taylor,  11  Exch.  369, 

378,  384 -...12',  147^  296- « 
V.  Taylor,    33  Eng.    L.   & 

Eq.  428 ....280-',  300'' 

Ray  V.  Fletcher,  12  Cusb.  200.167%  419- 
Razzo  V.  Varni  (Cal.)21  Pac.  Rep. 

762 4o9- 

Rea  V.  Hampton,  101  N.  C.  51...   541'^ 
Read  v.  Edwards,  34  L.  J.  N.  S. 

C    P  32  594' 

V.  Nichols,  li8'N.'y."224' 

7L.  R.  A.  130.... 650',  655' 
V,  Peniisvlvania  R.  Co.  44 

N.  J.  L.  280.641-.  642%  649^ 
Readhead  v.   Midland  R.  Co.  L. 

R.  4Q.  B.  379 133' 

Reardon  v.  Thompson,  149  Mass. 

267 23%  24',  25%     26^ 

Reba,  The,  2i  Fed.  Rep.  546 369^ 

Rector  v.  Biickhart,  3  Hill,  193 

49%     51- 

Redman  v.  Forman,  83  Ky.  215.    443- 
Red    River   Mills  v.  Wright,    30 
Minn.249,  44Am.Rep. 

194. 28S' 

Reduction  Works  v.  Stevenson,  20 

Nev.  269,  4  L.  R.  A.  60  444' 
Reed  v.  Alleghany,  79  Pa.  300...   323- 

v.  Belfast,  20  Me.  246 339' 

V.  Edwards,  17  C.  B.  N.  S. 

245.. 591%  615%  619' 

V.  Gannon,  50   N.  Y.  345, 

349,  350 242' 

V.  West.  16  Gray,  284 574- 

Reedie  «.  London  <k  N.W.  R.  Co. 

4  Exch.  244 583' 

Reeves  v.  Toronto,  21  U.  C.  Q.  B. 

157 330%  36P 

V.  Toronto,  21  U.  C.  Q.  B. 

160-. 293^ 

Reg.  V.  Betts,  16  Q.  B.  1022 468' 

■V.  Chorley,  12  Q.  B.  515.. 

.571',  578' 

V.  Cubitt,  L.  R.  22  Q.  B. 

Div.  623 496^ 

V.  Eastern  Counties  R.  Co. 

2Q.  B.  569.. 35' 

V.  Great  Northern  R.  Co. 

14  Q.  B.  25 482« 

V.  Randall,  1  Car.  &  M.  496  468' 
V.  United  Kingdom  E.  Tel. 

Co.  3Fost.  &F.  73-96,  251' 
T.  United  Kingdom  E.  Tel. 
Co.   31  L.  J.  N.  S.  M. 
C.  167 W 


Reg.  v.  Watts,  1  Salk.  357  ..104%  148 
Rehberg  v.  New  York,  91  N.  Y. 

137 103^ 

Rehler  v.  Western  N.  Y.  &  P.  R. 

Co.  55  Hun,  604 597 

Reicbert  v.  St.  Louis  &  S.  F.  R. 

Co.  51  Ark.  491,  5  L. 

R.  A.  183 251- 

Reid  V.  GifFord.  Hopk.  Ch.  416,  2 

N.  Y.  Ch.  L.  ed.  470  .   548' 
V.  Gifl'ord.  6  Johns.  Ch.  19, 

2  N.  Y.  Ch.  L.  ed.  40.   427* 
Reilly  v.  Booth,  L.  R.  44  Ch  Div. 

12 168^ 

Reinbard  v.  New  York,  3  Daly, 

243. 343- 

Reinhardt  v.  Menta.sti,  L.  R.  42 

Ch.  Div.  685,  40  Alb.  . 

L.  J.  490 9%  151-,  1533 

Reise  v.  Enos  (Wis.)  8  L.  R.  A. 

617 175^%  176' 

Reliance,  The,   4  Woods,  C.  C. 

420. ISS'o 

Remele  v.  Donahue,  54  Vt.  555..    626- 

Renuyson's  App.  94  Pa.  147 19P 

Reno  S.  M.  ifc  Reduction  AVorks 

v.  Stevenson,  20  Nev. 

269,  4  L.  R.  A.  60....   447- 
Rensselaer  t\  Leooold,  106  Ind. 

29,  3  West.  Rep.  874  .     82' 
Rensselaer  &,  S.  R.  Co.  r.  Davis, 

43  N.  Y   137,  146  ....     898 
Ren  wick  v.  Morris,  3  Hill,  621  ..     35' 
V.    Morris,    3  Hill,    621,   7 

Hill,  575 247' 

Report  of  the  Judges,  3  Binn.  595  443^ 
Requa  v.  Rochester,  45  N.  Y.  129 

--.. ..342',  3432 

Rerick  v.  Kern,  14  Serg.  &  R.  267   182' 
Respublica  v.  Arnold,  3  Yeates, 

417 76',  468' 

V.  Sparhawk,  1  U.  S.  1  Dall. 

357,  362,  1  L.  ed.  174. 

176. 6',  6473 

V.  Sparhawk,  1  U.  S.  1  Dall. 

359,  1  L.  ed.  175 6^ 

Rex  V.  Cross,  3  Camp.  224 75',  249 

V.  Daman,  2  Barn.  &  Aid. 

378 528- 

V.  Grosvenor,  2  Stark.  511.   468' 
V.  Hnggins,  2  Ld.   Raym. 

1574 629^ 

V.  Huffffins,  2  Ld.    Raym. 

1574,  1583 587' 

V.  Joues,  3  Camp.  230 

.75',  101%  2473,  249 

v.  Medley,    6    Car.    &   P. 

392 2472 

D.  Moore,  3    Barn.   &  Ad. 

184 48',  52' 


XXVlll 


TABLE    OF    CASES. 


Rex   V.   Morris,  1   Barn.    &   Ad. 

441... 35'^  468' 

V.  Nicholson,  12  East,  334.   483'' 
V.  Paffliam    Sewer   Corrirs. 

8  Barn.  &  C.  35i..300,  461'' 
V.  Pappineaii.  1  Sir.  6S6...  131^ 
V.  Pease,  4  Barn.  &  Ad.  30  89' 
V.  Pedley,  1  Ad.  &  El.  823 

...45, 

481,493,  50',  51^52'^  ^  61^,64 
V.  Russell,  6  Barn.&  C.  566  468' 
V.  Russell,  6  East,  427.... 

.75',  24:34^  248 

T.  Tindall,  6  Ad.  &  El.  143  468' 
V.  Tratlord,  1  Barn.  &  Ad. 

874,  8  Bing   204 46P 

V.  Ward,  4  Ad.  «fe  El.  384.    468' 
V.  Yarborougli,  3   Barn.  & 

C.   91 3933,  397^ 

V.  Yarborough,  3  Barn.  & 
C.  91,  2  Bligb,  N.  R. 

147. 397" 

«.  Yarborough,  3  Barn.  & 
C.  91,  2  Bligli,  N.   R. 
147,  1  Dow.  &  0.178..     400 
Rexroth   v.  Coon,  15   R.  I.  35,  1 

New  Eng.  Rep.  35.... 587'^  ^ 
Reynolds  v.  Burlington,  52  Vt.  300   362^ 
V.  Clarke,    2     Ld.    Raym. 

1399,  1  Str.  634 131" 

V.  Hussey,  64  N.   H.  64,  3 
New  Eng.  Rep.  722.. 

605',  606^  6I95 

V.  Hussey,  64  H.  N.  64,  2 
New  Eng.  Rep.  723.. 

^ 607«,  6103 

V.  McArthur,    27    U.  S.   2 

Pet.  417,  7  L.  ed.  470.    376'^ 
0.  Phillips,  13  111.  A  pp.  557   628' 
Rhinelander.  Re,  68  N.  Y.  105..   292' 
Rhoads  v.    Davidheiser,  133  Pa. 

226 460« 

Rhodes  v.  Cleveland,  10  Ohio,  159 

3063,  3431 

V.  Otis,  33  Ala.  578 

376^  377^405^  406,406',  550^ 
V.  Otis,  33  Ala.  578,  596...    3773 

V.  Otis,  33  Ala.  592 4033 

V.  Whitehead,  27  Tex.  304  418'^ 
Ribordy  v.    Pellachoud,   28  111. 

App.  303 3043 

Ricard  v.  Williams,  20   U.  S.    7 

Wheat.  60,  5  L.  ed.  398   234* 
Rice  V.  Des  Moines,  40  Iowa,  638   128' 
0.  Evansville,  108  Ind.  7,  6 
West.  Rep.  242.  244,  58 

Am.  Rep.  22...   

..325^  326^  332',  357«,  358' 

r.  Flint,  67  Mich.  401 326^ 

V.  Ruddiman,  10  Mich.  125  517^ 


Rich  V.  Basterfield.  4  C.  B.  783..     50' 
V.  Basterfield,  4  C.  B.  783, 

802 45,  149*^ 

V.  Basterfield,  4  C.  B.  784. 

47',  52.  61^  64 

Richards  «.  Fuqua,  28  Miss.  792.4883  =• 
V.  Peters,  70  Mich.  286,  14 

West.  Rep.  628 ..549'  * 

V.  Rose,  9  Exch.  218. 209» 

V.  Rough,  53  Mich.  212....    143' 
V.  Schleusener,  41  Minn.  49   645"*^ 
Richardson  v.  Boston,  60  U.  S.  19 
How.  263. 15L.  ed.  639 
...74^  247^  292-',  311S  383'^ 
V.  Boston,  60  U.  S.  19  How. 

270,  15  L.  ed.  642 326^* 

V.  Boston,  65  U.  S.  24  How. 

188,  16   L.  ed.  625....   359»- 
V.  Kier,  34  Cal.  63,  37  Cal. 

263 256' 

V.  Milburn.  11  Md.  340.5913,  592« 
V.  Palmer,  38  H.  N.  212,  220  161' 
V.  Pond,  15  Gray,  387. 180'^  577* 
V.  Prentiss,  48  Mich.  88...  517- 
'0.  Tobey,  121  Mass.  457...  220^ 
Richmond  v.  Courtney,  32  Gratt. 

798 100'' 

».  Long,  17  Gratt.  375 842' 

V.  Long,  17  Gratt.  382.335',  336* 
Richmond  &  D.  R.  Co.  v.  How- 
ard, 79  Ga.  44 362»- 

V.  Pickleseimer,  85  Va.  798 

...3633,  365' 

Richmond   Mfg.    Co.  v.  Atlantic 
DeLaine  Co.  10  R.  I. 

106 8^ 

V.  Atlantic  DeLaine  Co.  10 
R.  1. 116,  14  Am.  Rep. 

658 29r^ 

Riddle  v.  Locks  &  Canals,  7  Mass. 

169,  187 338,  3393 

Rideout  v.  Knox,  148  Mass.  368, 

2L.  R.  A.  81... -10*,  12,  r« 
Rider  v.  White,  65   N.  Y.  54,  22 

Am.   Rep.  600. . 605' ^  619' ^ 
Ridgely    v.   Johnson,    1     Bland, 

Ch.  316,  note 397' 

Ridgewav  v.  Holliday,  59  Mo.  444  230' 
Ridgway  v.  Ludlow,  58  Ind.  248  399"> 
Riehle  -o.  Heulings,  38  N.  J.  Eq. 

20 580* 

Riest  V.  Goshen,  42   Ind.  339 126'^ 

Rigg  V.  Lonsdale,  1   Hurl.  &  N. 

923. 543' 

Riley  v.  Simp.son,  83  Cal.  217,  7 

L.  R.  A.  622.-27^  493.  5V^ 
Rindge  v.  Baker,  57  N.  Y.  209.. 

2045,  211,  224'  *,  226 

V.  Sargent,  64  N.  H.  294,  4 

New  Eng.  Rep.  523..   410'' 


TABLE   OF   CASES. 


Ixxix 


Ring  ».  Cohoes,  77  N.  Y.  83 

....99-,  1023,  659' 

Rio  Grande  R.  Co.  v.  Brownsville, 

45  Tex.  88 93^  9-t> 

Ritgcr  c.  Parker,  8  Cush.  145 573* 

V.  Parker,  8  Cush.  147....  574' 
Ritterman  i'.  Ropes,  19  Jones  &  S. 

25,29 193 

Rix  V.  Johnson,  5  N.  H.  520  ....4613  4 
Roath  V.  Driscoll,  20  Conn.  533. 

544 ...12^  280' 

Robbins  ».  Barnes,  Hobart,  131.. 

175',•4l9^  573- 

■  V.  Chicago.  71  U.  S.  4  Wall. 
657,  18  L.  ed.  427.... 

39^ «,  99',  342',  343^ 

V.  Chicago,  71  U.  S.  4  Wall. 
657,  079,  18  L.  ed.  427, 

432 114' 

V.  Jones,  15  C.  B.  N.  S.  221 

...61^  693 

V.  Mount,  4   Robt.  553 2563 

Roberson   v.  Kirby,  7  Jones,  L. 

477- - 644« 

Robert  v.  Sadler,  104  N.  Y.  229, 

6  Cent.    Rep.    208.-70',  9P 
Roberts  v.  Baumearten,  110  N.Y. 

380,  13  Cent.  Rep.  410  385« 
V.  Jenkins,  21  N.  H.  116..  034'' 
v.  Jenkins,  21  N.  H.  119..  635^ 
V.  Johnson,  58  N.  Y.  613.. 

....1363,  147' 

V.  Ogle.  30  111.  459.... 602^  603'^ 
Robertson  v.  Miller,  40  Conn.  40.  547' 
Robeson  v.  Pittenger,  2  N.  J.  Eq. 

57 179^ 

Robinson   t\. Black  Diamond  C. 

Co.  50  Cal.  460 256' 

V.  Black  Diamond  Coal  Co. 
57    Cal.   412,   40  Am. 

Rep.  118 288' 

V.  Chamberlain,  34  N.  Y. 

389 ....3283,  3422 

V.  Greenville,  42  Ohio  St. 
625,  51  Am.  Rep.  857, 

note 3103 

V.  Malhwick,  5  Neb.  255..   481' 
V.  New    York    &    E.    R. 

Co.  27  Barb.  512 247^ 

V.  New  York  C.  &  H.  R.  R. 

Co.  20  Blatchf.  338...  155'" 
V.  Shanks,  110  Ind.  125...  295' 
V.  Thrailkill,  110  Ind.  117, 

8  West.  Rep.  556.176',  182» 
Robison    v.   Fetterman   (Pa.)   12 

Cent.  Rep.  566 603« 

Robson  V.  Mississippi  River  Log- 
ging Co.  43  Fed.  Rep. 

364 557^ 

Roche  V.  Ullman,  104  111.  11.2243,  227 


Rochester  v.  Simpson,  57  Hun.  36 

430*,  540» 

Rochester    White    Lead    Co.   v. 
Rochester.  3  N.  Y.  463 

312,  313,  329\  332' 

V.  Rochester.  3  N.  Y.  464.  330' 
V.  Rochester,  3  N.  Y.  466. 

292'.  311^,326*5,  sogs 

Rockford  v.  Hildebrand,  61  111. 

155 342' 

Rockwood   V.  Wilson,   11    Cush. 

221 439 

Rodgers  v.  Burchard,  34  Tex.  441   230' 
V.  Parker,  9  Gray,  445...    1843 
Rogers  v.   Allen,   1   Camp.   313, 

notea 5003 

V.  Allen,  1  Camp.  313  ....  499"> 
V.  Cox,  96  Ind.  157,  49  Am. 

Rep.  152 1826 

V.  Jones,  1  Wend.  237  ....  498* 
V.  Sinsheimer,  5U  N.  Y.  646 

..169,   171«,  205^  217',  24P 
V.  Sinsheimer,  50  N.  Y.  648   171^ 
V.  The  St.  Charles,  60  U.  S. 
19  How.  108,  15  L.  ed. 

563. 369' 

Rohn  V.  Harris,  130  111.  525 480* 

Rolke  V.  Chicago  &  N.  W.  R.  Co. 

26  Wis.  538 646* 

RoUe  V.  Whyte,  L.  R.  3  Q.  B.  286, 

306.. 532* 

Rome,  W.  &  O.  R.  Co.  v.  Ontario 

S.  R.  Co.  16  Hun.  445  224' 
Ronayne  v.   Loranger,   66  Mich. 

373,  10  West.  Rep.  518  4773 
V.  Loranger,  66  Mich.  373, 

10  West.  Rep.  520.468',  476* 
V.  Loranger,  66  Mich.  373, 

10  West.  Rep.  523 763 

Root  V.  Wad  hams,  107  N.  Y.  384, 

9  Cent.  Rep.  874 

169*,  1713,  185 

Roseburg  v.  Abraham,  8  Or.  509. 

....80^  4713 

Rosewell  v.  Prior,  2  Salk.  460.  1 

Ld.  Ravm.  713.. 44-,  45,  45* 
V.  Prior.    2"  Salk.    459,    12 

Mod.  635-639 443,  502 

Ross  V.  Boston  &  W.   R.  Co.  6 

Allen,  87 669* 

V.  Clinton,  46  Iowa,  606  ..  305<^ 
V.  Davenport,  66  Iowa,  548  128' 
V.  Fau.st,  54  Ind.  471..375^  412* 
V.  Fedden,  L.   R.  7  Q.  B. 

661. - 273* 

V.  Mackeney,  46  N.  J.  Eq. 

140 304' 

V.  Madison,  1  Ind.  281....  338' 
V.  Thompson,  78  Ind.  90. . 

176',  235',  323' 


Ixxx 


TABLE    OF    CASES. 


Rossell  V.  Cottom,  31  Pa.  525 G23^ 

Roswell  V.  Leslie,  133  Mass.  589.    624' 
Roulston  V.  Clark,  3  E.  D.  Smith, 

366 23",  106' 

Rounds  V.  Mansfield,  38  Me.  586.   600^ 

v.  Stetson,  45  Me.  596 600^ 

Routh  V.  Driscoll,  20  Conn.  533..    28P 
Rowbotham  v.  Wilson,  8  El.  &  Bl. 

123 181« 

V.  Wilson,  8  El.  &  Bl.  136.   438^ 
z\  Wilson,  8  El.  &  Bl.  145.    183« 
Rowe  V.  Granite  Bridge  Corp.  21 

Pick.  344 

..3745,  3763,  4051^  4355^  4682 
^^  Portsmouth,  56  N.  H.  291  326^ 
V.  St.  Paul,  M.  &  M.  R.  Co. 

41  Minn.  384 298",  300' 

V.  Titus,  1  Allen  (N.  B.)326 

.3773,  405',  416 

Rowell  V.  Doffgett,  143  Mass.  483, 
3  New  Eng.  Rep.  756. 
1743  ^  239^  245^  5  6^  263^  265* 
«.  Lowell,  7  Gray,  100.365,  367 
«.  Williams,  29  Iowa,  210.    113' 
Rowland  v.  Gallatin,  75  Mo.  134.   337^^ 
Ruck  V.  Williams,  3  Hurl.  &  N. 

308 3265 

Ruddiman  «.  A  Scow  Platform, 

38  Fed.  Rep.  158 567^ 

Ruffner  ®.  Cincinnati,  H.  &  D.  R. 

Co.  34  Ohio  St.  96....    648^ 

Ruggles  V.  Fay,  31  Mich.  141 639^ 

Rumford  Fourth  School  Dist.  v. 
Wood,    13  Mass.   193, 

198- 3412 

Rumsey  v.  Nelson,  58  Vt.  590,  2 

New  Eng.  Rep.  63....  612^ 
1).  New  York  &  N.  E.  R. 

Co.  114  N.  Y.  423....    396' 
Rundle  v.  Delaware  &  R.  Canal 
Co.  55  U.  S.  14  How. 
80,  14L.  ed.  335..386',  387^ 
Runyon  v.  Bordine,  14  N.  J.  L. 

472.... 36^  79- 

V.  Central  R.  Co.  25  N.  J. 

L.  556 3633 

Rupard  v.  Chesapeake  &  O.   R. 

Co.  (Ivy.)  7  L.R.  A.  316       S^. 
Russel  V.  Devon,  2  T.  R.  667.338,  340 
Russell  v.  Jersey  Co.  56  U.  S.  15 

How.  426, 14  L.  ed.  757  494* » 
V.  New  York,  2  Denio,  461  6' 
V.  Reagan,  34  Mo.  App.  242 

6423,  6453 

V.  Scott,  9  Cow.  279... 428^  545* 
V.  Shenton,  2  Gale  &  D.  573 

582,  65 

V.  Toralinson,  2  Conn.  206   626 

Rust  V.  Low,  6  Mass.  90 59P,    593^ 

v.  Low,  6  Mass.  94 589^ 


Rutter  V.  Henry,  46  Ohio  St.  272.   600' 
Ruttles  V.  Covington  (Ky.)  10  Ky. 

L.  Re^p.  706 90' 

Ruiz  V.  Seeger,  35  Fed.  Rep.  188  400' 

Ryan  v.  Brown,  18  Mich.  196 405' 

V.  Curran,  64  Ind.  345 333^ 

«.  Gilmer,  2  Mont.  517 156"' 

V.  New  York  Cent.  R.  Co. 

35  N.  Y.  210 649 

«.  Wilson,  87  N.  Y.  471.52',  72* 
Rychlicki  v.  St.  Louis,  98  Mo.  497, 

4  L.R. A. 594. 290',  304%  326' 
Rylands  v.  Fletcher,  L.  R.  3  H. 

L.  330 .. 

.-7\  270,  271,  271«,  272,  273 

S. 

Sackrider  v.  Beers,  10  Johns.  241  287- 
Sagrill  V.  Milward,  21   Hen.  VI. 

p.  33,  pi.  20 591« 

St.  Anthony  Falls  Water-Power 

Co.  V.  Minneapolis,  41 

Minn.  270. ..410',  4203,  4535 
St.   Clair  Co.  v.  Lovingston.  90 

U.  S.  23   Wall.  46,  23 

L.    ed.  59 

..396'-.  397',  399'»,  401 

®.  Lovingston,  90  U.  S.  23 

Walt;  46,  63,  23  L.  ed. 

59.62 3932 

St.  Helen's  Smelting  Co.  v.  Tip- 
ping, 11  Jur.  785 259^ 

St.  John  V.  New  York,  3  Bosw. 

483.. 102' 

St.   Joseph   &  D.   C.   R.  Co.   v. 

Chase,  11  Kan.  47 664' 

St.  Louis  V.  Kaime,  2  Mo.  App. 

66. 52' 

V.  Myers,  113  U.  S.  566,  28 

L.  ed.  1131. 3893 

V.  Weber,  44  Mo.  547 152^ 

St.  Louis  &  St.  P.  Packet  Co.  v. 

Keokuk  &   H.  Bridge 

Co.  31  Fed.  Rep.  755. 

..463%  467'  2 

St.  Louis  Bridge  Co.  v.  People, 

128  In.  422,  15  West. 

Rep.  155 3242 

St.  Louis,  I.  M.  &  S.   R.  Co.  v. 

Hecht,  38  Ark.  357...  6663 
v.  Ramsey  (Ark.)   8  L.  R. 

A.  559. 378%  3873* 

St.   Louis,   J.   &    C.   R.   Co.    V. 

Mitchell,  47  111.  165 ...  89« 
St.  Louis   Public   Schools  v.  Ris- 

ley,  40  Mo.  356 396' 

v.  Risley,  77  U.  S.  10  Wall. 

91,  19L.  ed.  850 

389*^397^401' 


TABLE    OF    CASES. 


Ixxxi 


St.  Louis,  V.  &  T.  H.  R.  Co.  v. 

Bell,  81  111.  76 233 

St.  Paul  V.  8ei(z,  8  .Minn.  297 114' 

St.   Paul  &  P.  R.  Co.  V.  Schur- 

meier.  74  U.  S.  7  Wall. 

272,  19  L.  ed.  74 

359',  380\  388«,  5593  4  6 

St.  Paul  Water  Co.  v.  Ware,  83  U. 

S.  16  Wall.  566,  21  L. 

ed.  485._ .3431,  348= 

V.  Ware,  83  U.  S.  16  Wall. 

576.  21L.  ed.4  88 39« 

Sale®.  Piatt,  19  Pick.  191 383^ 

Salem  Capital  Flour  Mills  Co.  v. 

Stayton    W.   D.  &  C. 

Co.  33  Fed.  Rep.  146.  172' 
Salisbury «. Andrews,  19Pick.250  242^ 
V.  Andrews,  128  Mass.  336 

181',  253 

V.  Hercbenroder,  106  Mass. 

458 - 272 

Salmon  v.  Bensley.  Ryan  &  M.  189  66 
V.  Delaware,  L.  &  W.  R. 

Co.  38  N.  J.  L.  5,  20 

Am.  Rep.  356. ...241',  664' 
V.  Delaware, L.  &  W.R.Co. 

38  N.  J.  L.  5,  39  N.  J. 

L.  299 660= 

Saltonstall  v.  Banker,  8  Gray,  195, 

197 45.  493,  51-^* 

Sampson  v.  Hoddinott,  1  C.  B.  N. 

S.  590 443« 

t).  Smitb,  8  Sim.  272 79' 

Samva  v.   McClosky,  2  Ohio  St. 

536 -lOP,  1035 

Sanborn  v.  Rice,  129  Mass.  387..  211 
Sanderlin  v.  Baxter,  76  Va.  299.. 

166',  17r 

V.  Baxter,  76  Va.  305..176«,  570' 

Sanders  v.  Martin,  2  Lea,  213 227 

V.  Reister,  1   Dak.  151 110' 

V.  Teape,  51  L.  T.  N.  S.  263 

..6'J7-,  615 

Sanderson  v.  Pennsylvania  Coal 

Co.  86  Pa.  401,27  Am. 

Rep.  711 154,  288' 

San  Francisco,  A.  &  S.  R.  Co.  v. 

Caldwell,  31  Cal.  385.  564' 
Sankey    v.    St.    Mary's    Female 

Academy,  8  Mont.  265  180' 
Sapphire,  The,  78  U.  S.  11  Wall. 

164,  20  L.  ed.  127....  369' 
Sarah  Jane,  The,  1  Low.  203  ...  37P 
Sarch  v.  Blackburn,  4  Car.  &  P. 

296 616- 

V.  Blackburn,  4  Car.  &  P. 

297 ...17'-,  619^  63P 

Sargent  v.  Ballard,  9  Pick.  251- 

255 427"\  582' 

V.  Hubbard,  102  Mass.  380  578^ 


Sargent®.  Ohio«&M.R.Co.  1  Han- 
dy (Ohio)  52 73' 

Sarpy  v.  Hymel,  40  La.  Ann.  425  580' 
Satterfield  v.  Rowan,  83  Ga.  187. 

289',  294 

Saulet  V.   Shepherd,  71   U.  S.  4 

Wall.  502, 18  L.  ed.  442 

399\  400' 

Saunders  v.  Newman,  1  Barn.  & 

Aid.  258 545< 

Saussy  v.   South  Fla.  R.  Co.  22 

Fla.  327 644^  660* 

Savage®.  Mason.  3Cush.  504.204S  224^ 
Savannah,    A.   &    G.    R.    Co.   ®. 

Shields,  33  Ga.  601. ..  79' 
Savannah  &  T.  R.  Co.  v.  Savan- 
nah, 45  Ga.  602. 248= 

Savannah,   F.   <fe  W.    R.   Co.  v. 

Geisrer,  21  Fla.  669...    503' 

V.  Lawton,  75  Ga.  192 461^ 

Sawyer  v.  Corse.  17  Gratt.  230.. .  100' 
V.  Corse,  17  Gratt.  241....  342' 
V.  Davis,  136  Mass.  239,  243  13' 
V.  Hannibal  &  St.  J.  R.  Co. 

37  Mo.  240. 155' 

v.  Northfield,  7  Cush.  490, 

494 339» 

Saxby  v.  Manchester,  S.  &  L.  R. 

Co.  38  L.  J.  N.  S.  C. 

P.  153... 157' 

Saxton  V.  Zett,  44  N.  Y.  432 333* 

Schaefer  v.  Marthaler,  34  Minn. 

487 257' 

Schaefler  v.  Sandusky,   33  Ohio 

St.  246 129'>« 

Schall  V.  Nusbaum,  56  Md.  512.. 

SO',  476' 

Schell  ®.  Second  Nat.  Bank,  14 

Minn.  43 9^ 

Schermerhorn   v.    New   York,    3 

Edw.  Ch.  119,  6  N.  Y. 

Ch.  L.  ed.  594 564' 

Schile  V.  Brokhahus,  80  N.Y.  614 

210^  233* 

Schlag  ®.  Jones,  131   Pa.  62 256* 

Schlichter  v.  Phillipy,  67  Ind.  201  300- 
Schmidt  v.  Bauer,  80  Cal.  565,  5 

L.  R.  A.  580.  and  note  25^ 
Schneider  v.   Missouri  P.  R.  Co. 

29  Mo.  App.  68 300- « 

Schneir  v.  Chicago,  R.  I.  &  P.  R. 

Co.  40  Iowa,  337 147' 

Schoenfeld  v.  Milwaukee  City  R. 

Co.  74  Wis.  433  ..363\  364* 
School  Dist.   No.    1   v.  Neil,  36 

Kan.  617 75« 

Schultz  V.   Cliirago  &  N.  W.  R. 

Co.  67  Wis.  616. 137» 

®.   Pacific  R.  Co.  36  Mo. 

32 136* 


Ixxxii 


TABLE    OF    CASES. 


Schuylkill  Nav.  Co.   v.  McDon- 

ouffh,  33  Pa.  73 433^ 

Schwartz  v.  Gilmore,  45  111.  454.     28' 
Schwoerer  v.    Boylston    IMarket 

Asso.  99  Mass.  285 253 

Scioto  Valley  R.  Co.  v.  Lawrence, 

38  Ohio  St.  41 82' 

Scott  V.  Chicago,  1   Biss.  510 

4793,  530',  531' 

V.  Grover,  56  Vt.  499 595^ 

V.  Hall,  16  Me.  326 645'^ 

V.  London  &  St.  K.  Docks 

Co.  3  Hurl.  &C.  596-.   147^ 
V.  London  Dock  Co.  34  L. 

J.  N.  S.  Exch.  17,  220  612'' 
V.  Manchester,  2   Hurl.    & 

X.  204,  210 3383 

V.  Shepherd,  2  W.  Bl.  892. 

1442,  6573 

V.  Wilson,  3  N.  H.  321.405',  415 
V.  Wilmington  &  R.  R.  Co. 

4  Jones,  L.  432 147' 

Scratton  v.  Brown,  4  Barn.  &  C. 

485. 3933,  401' 

Screven  v.  Gregorie,  8  Rich.  L. 

163 168« 

Scribner  v.  Kelley,  38  Barb.  14.. 

587',  629' 

Scriver  v.  Smith,  100  N.  Y.  471, 
1  Cent.  Rep.  763,  767. 

355'^  ^  357' ^  432^  460^ 

Seal  «.  Donnelly,  60  Miss.  662.. 

-.4828,  485^ 

Seaman  v.  Lee,  10  Hun,  607 287* 

V.  New  York,  80  N.  Y.  239  566=* 
Searing  v.  Saratoga  Springs.   39 

Hun,  307 288^ 

Searles  v.  :^Lanhattan   E.  R.  Co. 

101  N.  Y.  666,  2  Cent. 
Rep.  442.... 659-2 

Seele  v.   Deerine,  79  Me.  343,  4 

New  Eng.  Rep.  557  .      351'^ 
V.  Deering,  79  Me.  347,   4 
New   Eng.    Rep.    550 

....336',  3413 

Seeley  v.  Bishop,  19  Conn.  134..    168« 
V.  New  York  Cent.  R.  Co. 

102  N.  Y.  719,  3  Cent. 
Rep.  743 652',  654^^ 

«.  Peters,  10  111.  130 598^ 

B.Peters,  10  111.142 592 

Seihert  v.  Levan,  8  Pa.  383 5748 

Seifert  v.  Brooklyn,  101  N.  Y. 
136,  2  Cent.  Rep.  135, 
136,  137... 2903,  292' ^ 
2933,  304\  31 1^  317, 
325',  3263,  327»^  331' ^  33323 
Selby  V.  Robinson,  2  T.  R.  758..  189* 
Seldea  v.  Delaware  &  H.  Canal 

Co.  24  Barb.  362 14 


Selden  v.  Delaware  &  H.  Canal 
Co.  29  N.  Y.  634,  642. 

..110',  2703 

Selleck  v.  Langdon,  55  Hun,  19..   655'» 
Sellers  v.  Union  Lumbering  Co. 

89  Wis.  525. 405'.  412' 

Selma  v.  Perkins,  68  Ala.  145...    342' 

Selman  v.  Wolfe.  27  Tex.  68 377* 

Seneca  Nation  v.  Knight,  23  N.  Y. 

498 397^ 

Senna  v.  Perkins,  68  Ala.  145...   343'^ 
Sensenig  v.  Parry,  113  Pa.  115,  4 

Cent.  Rep.  48 2145' 

Sentner  v.  Tees,  132  Pa.  216 302'2 

Seska  v.  Chicago,  M.  &  St.  L.  R. 

Co.  77  Iowa,  137 648+ 

Sessengut  v.  Posey,  67  Ind.  408.  104 
Severy  v.  Central  Pac.  R.  Co.  51 

Cal.  194 Qd\  94' 

T.  Nickcrson.  120  Mass.  306 

233,  568* 

Sewall  &  D.  Cordage  Co.  v.  Bos- 
ton Water  Power  Co. 
147  Mass.  61,  6  New 

Eng.  Rep.  325... 380^ 

Sexton  V.  Zett,  44  N.  Y.  430  ....    108= 
Seybolt  v.  New  York.  L.  E.  &  W. 

R.  Co.  95  N.  Y.  562..    155^ 
Seymour  v.  Cummins,  119  Ind. 

148,  5L.  R.  A.  126...    322 
V.  Lewis,  13  N.  J.  Eq.  439, 
78  Am.  Dec.  108,  120, 

and  7iote. 

166',  168^  186^  2412  3 

V.  Lewis,  13  N.  J.  Eq.  444 

1745,  175' 

V.  Maddox,  16  Q.  B.  326..  150* 
Shafer  v.  Wilson,  44  Md.  268.38',  198- 
Sharp  V.  Cheatham,  88  Mo.  448,  5 

West.  Rep.  373 

223,  2246,  230^ 

V.  Grav,  9  Bing.  457 363' 

«.  Hoffman,  79  Cal.  404...  449^ 
V.  Powell,  L.  R.  7  C.  P.  253  139^ 
T.  Whiteside,  19  Fed.  Rep. 

156 152' 

Shartle  v.  Minneapolis,  17  Minn. 

308 342',  343- 

Shattuck  D.  Rand,  142  Mass.  83,2 

New  Eng.  Rep.  378  ..    136' 
Shaubut  V.  St.  PaulXt  S.  C.  R.  Co. 

21  Minn.  502 75*,  475* 

Shaw  V.  Craft.  37  Fed.  Rep.  317 

614',  623 

V.  Crawford,  10  Johns.  286, 

237 70*,  403'.  415,  549* 

V.  Oswego  Iron  Co.  10  Or. 

371.. 412 

Shed  ®.    Hawthorne,  3  Neb.  179 

126*,  475* 


TABLE   OF   CASES. 


Ixxxiii 


Shed  V.  Hawthorne.  3  Neb.  185.  TO^ 
Sheen  v.  Stothart,  2!)  La.  Ann.  630  184^ 
Sheets  v.  Atherton  (Vt.)  15)  Atl. 

He  p.  926.-..535^  536'  ">  ^  *  ^ 
Shelbyville  It.  Co.  v.  Lewark,  4 

Ind.  471 637' 

V.  Louisville,  C.  &  L.  R. 

Co.  82  Ky.  541 89* 

Sheldon  v.  Rockwell,  9  Wis.  166 

427^  476-' 

V.  Sherman,  42  N.  Y.  484. 

272',  440' 

Shenandoah  v.  Erdnian  (Pa.)  11 

Cent.  Rep.  440 130« 

Shepard  v.  People,  40  31ich.  487.  648- 
Shepherd  v.  Chelsea,  4  Allen,  113 

365^  366,  656' 

Sherfey  v.  Bartley,  4  Sneed,  58  . . 

617',  619^  6278,  631^ 

Sheridan  v.  Bean,  8  Met.  284....  622^ 
Sherlock  v.  Louisville,  N.  A.  & 

C.  R.  Co.  115  Ind.  22, 

14  West.  Rep.  843...  429^* 
Sherman  v.  Braman,  13  Met.  407  603^ 
V.  Fall  River  Iron  Works 

Co.  5  Allen,  213 80^ 

Sherred  v.  Cisco,  4  Sandf.  480... 

.2095,  2132^  216^ 

V.  Cisco,  4  Sandf.  485 217 

Shewel  i).  Fell,  3  Yeates,  21 443^ 

Shields  v.  Arndt,  4  N.  J.  Eq.  434  580^ 
Shindelbeck  v.  Moon,  32  Ohio  St. 

264 52' 

Shinn  v.  Cotton,  52  Ark.  90 481' 

Shipley  v.  Caples,  17  Md.  179... 

....126^  475'' 

V.  Fifty  Asso.  101  Mass.  251 

..105',  125^  132',  153',  271' 
V.  Fifty  Asso.     106    Mass. 

194. .9^  27^  1073 

Shively  v.  Cedar  Rapids,  I.  F.  & 

N.  R.  Co.  74  Iowa,  169     14' 
Shoemaker®.  Shoemaker,  11  Abb. 

N   C.  80-  235® 

Shook  V.  Coiioes,  108N."  y"  648', 

11  Cent.  Rep.  301 130^ 

Short  V.  Devine,  146  Mass.  119, 

5  New  Eng.  Rep.  592.   245- 
V.  Taylor,  2  Eq.  Cas.  Abr. 

522 183« 

Shrewsbury  v.  Brown,  25  Vt.  197  238' 
V.  Smith,  12  Cush.  177 

272',  440' 

Shrieve  v.  Stokes,  8  B.  Mon.  453 

198'^  199',  233^ 

Shroder    v.    Brenneman,  23  Pa. 

348 238'^ 

Shrunk  v.  Schuylkill  Nav.  Co.  14 

Serg.  &  R.  71-74 

380%  386',  514',  531'' 


Shupe  V.  Collender,  56  Conn.  489, 

1  L.  R.  A.  339,  note  ..   634» 
Shury  v.  Piggott,  3  Bulst.  339... 

175>,  420' 

Siemers  v.  Essen,  54  Cal.  418.-.-  612' 
Sigler  V.  State,  7  Ba.xt.  493.. 377',  404» 
Sigourney  v.  Munn,  7  Conn.  324.  242' 
Si'kes  V.  Sheldon,  58  Iowa,  744  ..  139* 
Silsby  Mfg.  Co.   v.  Slate,  104  N. 

Y.  562.  6  Cent.   Rep. 

812.... 459» 

Silvarer  v.  Hansen,  77  Cal.  579..  595* 
Silvers  v.  Nerdlinger,  30  Ind.  53 

-.53',  114',  247* 

Silver  Spring  B.   &    D.    Co.    v. 

Wanskuck   Co.  13  R. 

L  611 .-   456* 

Simmer  v.  St.  Paul,  23  Minn.  ^08  326* 
Simmons  v.  Cloonan,  81   N.  Y. 

557 166',  1716^ 

V.  Cornell,  1  R.  I.  519  ....    236+ 
V.  Elliott,  Montreal  L.  Rep. 

5  Super.  Ct.  182 148* 

V.  New  Bedford,  V.  &  N. 

Steamboat  Co.  97  Mass. 

361 488* 

Simons  v.  Morehouse,  88  Ind.  391  182* 
Simonton  v.  Loring,  68  Me.   164.   256* 

Sims  I'.  Davis,  Cheves,  L.  1 236* 

Simson  v.  London  General  Omni- 
bus Co.  L.  R.  8  C.  P. 

390 620'  » 

Singleton  v.  Phoenix  Ins.  Co.  57 

Hun,  590 656» 

Sioux  City  &  P.  R.  Co.  v.  Stout, 

84  U.  S.  17  Wall.  657, 

21  L.  ed.  745 .29',  30 

Sisk  V.   Crump,  112  Ind.  504,  12 

West.  Rep.  134,  137.. 

123',  597,  599' 

Sjogren  v.  Hall,  53  Mich .  274 ... .  Ui 
Skinner  v.  Chapman,  Moody  & 

M.  59,  n 497* 

V.  Hellrick,  73  N.  C.  53...   498* 
V.  London,  B.  &  S.   C.   R. 

Co.  5  Exch.  787 155* 

Skull  V.  Glenister,  16  C.  B.  N.  S. 

105... 2.88* 

Slack  v.  Lawrence  Twp.  (N.  J.)  19 

Atl.  Rep.   663 306* 

Slater  «.  Fox,  5  Hun,  544 405' 

V.  Mersereau,  64  N.  Y.  138  660* 
Sleight  V.  Kingston,  11  Hun.  594. 

292-**,  311*,  320** 

Slimmer  v.  Merry,  23  Iowa,  90..  488* 
Sloan  V.  Biemiller,  34  Ohio  St.  492  512' 
Slosson  V.  Burlington,  C.  R.  &  N. 

R.  Co.  51  Iowa,  294-.   666" 
Sloughton    V.  Porter,    13    Allen, 

191 114* 


Ixxxiv 


TABLE    OF    CASES. 


Small  V.  Chicago,  R.  I.  &  P.  R. 

Co.  55  Iowa,  583 654i  - 

V.  Danville,  51  Me.  359.335',  352'^ 
Smart  v.  Morton,  5  El.  &  Bl.  30.  38' 
Smethurst  v.  Barton  Square  Inde- 
pendent Congregation- 
al Church,    148''Mass. 

261,  2  L.  R.  A.  695... 

106-,  107',  125 

Smiles  v.  Hastings,  24  Barb.  44..  580^ 
Smith  V.  Adams,  6   Paige,  435,  3 

N.  Y.  Ch.  L.  ed.  1051  3622 
V.   Agawam    Canal   Co.   2 

Alien,  355 546' 

e.  Atlanta,  75  Ga.  110 

293^  326S  3273 

V.  Boston,  7  Cush.  257 474' 

V.  Causey,  22  Ala.  568 

586^  607^  626^ 

«.  Dedham,  8  Cush.  522...   347^ 

«.  Dunton,  42  Iowa,  48 230' 

«.  Fletcher,  L.  R.  7  Exch. 

305 27P 

1).  Fletcher,  L.  R.  9  Exch. 

64 438' 

1}.  Frampton,  2  Salk.  644..  644' 
«.  Gates,  21  Pick.  55.-6005,  603-' 
V.  Great  Eastern  R.  Co.  L. 

R.  3  C.  P.  4,  36  L.  J. 

N.  S.  C.  P.  33,  15  W. 

R.  81,  15  L.  T.  K  S. 

246 631« 

V.  Great  Eastern  R.  Co.  L. 

R.  3C.  P.  10 146« 

«.  Griffin  (Colo.)  33    Pac. 

905 -.    166* 

v.  Ilarkins,  3  Ired.  Eq.  613, 

44  Am.  Dec.  83 480'o 

1).  Huntington,  3  N.  H.  76.  602s 
V.  Jaques,  6  Conn.  530-594«,  623^ 

v.  Kemp,  3  Salk.  637 498"  '^ 

V.  Keurick,  7  C.  B.  515 388* 

«.  Langewald,     140    Mass. 

305,  1  New  Eng.  Rep. 

449 ....258-'^  580'* 

V.  Levinus,  8  N.  Y.  473... 

378*,  495^5332 

«.  London  &  St.  K.  Docks 

Co.  L.  R.  3  C.  P.  326. 

20»%  567^2 

v.  London  &  S.  W.  R.  Co. 

L.  R.  5  C.  P.  98-.G4P,  664' 
V.  London  &  S.  W.  R.  Co. 

L.  R.  5  C.  P.  98,  L.  R. 

6C.P.  14 654' 

«.  McConathy,  11  Mo.  517. 

....80S  391*,  47P 

«.  Maryland,  59  U.   S.  18 

How.  71,  15  L.  ed.  369 

371S  378',  379^9,  494'%  495^ 


Smith  V.  Maryland,    59  U.  S.  18 

How.  74,  15  L.  ed.  370 

493',  4943 

V.  Matteson,  41  Hun,  216.  608* 
V.  Miller,  5  Mason,  191....  513' 
V.  Miller,  11  Gray,  148...  582' 
9).  Montgomery,  52  Me.  178  594* 
V.  Musgrove,  32  Mo.  App. 

241 426* 

V.  New  Y'ork,  66  N.Y.  295, 

23  Am.  Rep.  53. ..317,  330* 
V.  New  York,  66  N.Y.  295, 

4  Hun,  627 331* 

V.  Pelah,  2  Strange,  1264.. 

617',  619',  620«,  63r 

V.  People,  47  N.  Y.  339...     88' 

V.  Race,  76  111.  490 623* 

V.  Rochester,  92  N.  Y.  463.4563  ^ 
V.  Rochester.  93  N.  Y''.  463, 

479,  480. 503' 

V.  Rochester,  93  N.  Y.  463, 

481 530- 

v.  Rochester,  93  N.  Y.  473 

5442,  54S'' 

«.  Russ,  17  Wis.  328 363^ 

V.  St.  Louis  Public  Schools, 

30  Mo.  290. 393S  396' 

V.  St.    Paul  C.    R.  Co.  33 

Minn.  1 155" 

V.  Simmons,  103  Pa.  32.. 

1018,  i24() 

V.  Wiggin,  52  N.  H.  112..  577^ 
V.  Wildes,  143  Mass.  556,  3 

NewEng.  Rep.  744...  137^ 
Smoot  V.  Wetumpka,  24  Ala.  113  343' 
Smyles  v.  Hastings,  33  N.  Y.  217  159' 
Smyth  V.  Tankersley,  20  Ala.  212  20P 
Snape  v.   Dobbs,  1    Bing.  202,  8 

Moore.  33 501' 

Snell  V.  Levitt,  39  Hun,  337 580* 

V.  Levitt,  110  N.  Y.  595,  1 

L.  R.  A.  414. 

5702,  57P,  573',  580^ 

Snow     V.    Brunswick,     71    Me. 

582.... 335" 

«.  Carruth,  1  Sprague,  324    369 
V.  Housatonic  R.  Co.  8  Al- 
len, 441 253'' 

V.  Parsons,  38  Vt.  459....  443'^ 
V.  Provincetown,  130  Mass. 

580- 31 

Snowden  «.  Wilas,  19  Ind.  10.-1822  ^ 

V.  Wilas,  19  Ind.  14 182' 

Snyder  v.  Cabell,  29  W.  Va.  48.. 

115«,  475* 

V.  Pittsburgh,  C.  &  St.  L. 

R.  Co.  11   W.  Va.  17. 

664',  665- «,  6663 

Snyder's  App.  (Pa.)  6  Cent.  Rep. 

370. 338^  263* 


TABLE   OF   CASES. 


Ixxxv 


Solomon  v.   Grosbeck,  65  Mich. 

540,  9  West.  Rep.  107.  518' 
V.  Vintners  Co.  4   Plurl.  & 

N.  585,  28  L.  J.  N.  S. 

Exch.  370 192 

Soltau  V.  DeHeld,  2  Sim.  N.  S. 

133 -.79^  4755 

Somerset  v.   Fop;weli,  5  Barn.  & 

C.  875,  1  Dowl.  &  Ry. 

347 -- 500* 

Someiville  v.  Wimbish,  7  Gratt. 

205.. - 480^ 

South  &  North-  Ala.  R.   Co.  v. 

McLendon,  63  Ala.  266  252^ 
Southard  v.  Morris  Canal  &  Bkg. 

Co.  1  N.  J.  Eq.  518---  427^ 
South  Bend  v.  Hardy,  98  Ind.  586  128*= 
South  Branch  R.  Co.  v.  Parker, 

41   N     J.   Eq.   489,  4 

Cent.  Rep.  63 235' 

South  Carolina  v.  Georgia,  93  U. 

S.  4,  14,  23  L.  ed.  782, 

785... - 80^  47P 

South  Carolina  R.  Co.  v.  Moore, 

28   Ga.  398 ...lb\  4753 

V.  Steiner,  44  Ga.  546 90' 

South  Carolina  Steamboat  Co.  v. 

South  Carolina  R.  Co. 

30  S.  C.  539,  4  L.  R.  A. 

209 4693,  4714 

Southcote  V.  Stanley,  1  Hurl.  &  N. 

247 .25\  1503 

Southern  Pac.  R.  Co.  v.  Reed,  41 

Cal.  256.- 90' 

Southern  R.  Co.  v.  Kendrick,  40 

Miss.  374. 128'^ 

Southwestern  R.  Co. «.  Southern  & 

A.  Teleg.  Co.  46  Ga. 

43 978 

South  West  Va.  Imp.  Co.  v.  An- 
drew (Va.)  9  S.  E.  Rep. 

1015. 1452 

V.  Smith  (Va.)7S.  E.  Rep. 

365 5' 

South  Yuba  Water  &  Min.  Co.  v. 

Rosa,  80  Cal.  333 445!^ 

Sowerby    «.    Coleman,    L.    R.   2 

E.\ch.  99 1895 

Sowers  v.  Sbiff,  15  La.  Ann.  275  300^ 
Spackraan  v.  Steidel,  88  Pa.  453.  161« 
Spangler    v.    San   Francisco,   84 

Cal.  12 333' 

Sparhawk  v.  Bullard,  1  Neb.  95.  380' 
V.  Union  Passenger  R.  Co. 

54  Pa.  401 79' 

Spaulding  t>.  Chicago  &  N.  W. 

R.  Co.  30  Wis.  110... 

6413,  6484 

V.  Winslow,  74  Me.  533...  108'^ 
Spear  v.  Robinson,  29  Me.  531  ..   540^ 


Spelman  v.  Portage,  41  Wis.  144 

305«.  806» 

Spencer  v.  London  &  B.  R.  Co.  8 

Sim.  193.-- 79' 

Spencer's  Case,  1   Smith,   Lead. 

Cas.  (7th  Am.  ed.)  p, 

219 220 

Spencer's  Case,  5  Coke,  *16,  29, 1 

Smith,  Lead.  Cas.  *137 

220\  222* 

Spencer's  Case,  1    Smith,  Lead. 

Cas.  *137   - 2212  4 

Spencer's  Case,  1    Smith,  Lead. 

Cas.  (6tli  Am.  ed.)  167  229 
Sphung  V.  Mooie,  120  Ind.  352..  395' 
Spigener  v.  Cooner,  8  Ricii.  L.  301  397' 
Spooner  v.  Delaware,  L.  &  W.  R. 

Co.  115N.  Y.  22 53 

«.   McConnell,  1  McLean, 

337,350  - -.79',  376« 

Spoor  V.  Green,  L.  R.  9  Exch.  99. 

8  Moak.  Eng.  Rep.  540  242^ 
Spray  v.  Ammerman,  66  111.  309. 

...6063,  626',  628=- 

Spring  V.  Russell,  7  Me.  273.  290 

3773, 

404«,  415',  416,  5303,  5315 
Springer  v.  Bartle,  46  Iowa,  688.  230' 
Springfield  v.  Connecticut  R.  R. 

Co.  4  Cush.  63 89' 

V.  Harris,  4  Allen,  494 

.--.443«,  547'' 

V.  LeClaire,  49  111.  476-114',  342' 
Springstead  v.  Lawson,  23  How. 

Pr.  302 635-' 

Stace  &  Worth's  Case,  L.  R.  4 

Ch.  682.... 183-« 

Stackpole  v.  Healy,  16  Mass.  33.   265'« 
Stafford  v.  Ingersol,  3  Hill,  38... 

591',  5925 

V.   Rubens,  115  111.  196,  1 

West.  Rep.  640 137' 

Stainton  v.  ^letropolitan  Board  of 

Works.  23  Beav.  225, 

26  L.  J.  N.  S.  Ch.  300  453' 
Stallard  v.  Cashing,  76  Cal.  472.  180' 
Stanchfield  ??.  Xewtim,  142  Mass. 

110,  2  New  Eng.  Rep. 

526 

288',  UV,  3495,  358',  460* 
Standard  Bank  v.  Stokes,  L.  R.  9 

Ch.  Div.  68 213 

Standi.sh  v.  Lawrence,  111  Mass. 

Ill .- 2045,  224'« 

Stanley  v.  Davenport,   54  Iowa, 

463 93*,  251« 

V.   Gaylord,    1   Cush.  536, 

551 269' 

Stansell  v.  Jollard,  1  Selwyn,  N. 

P.  435 192 


Ixxxvi 


TABLE    OF    CASES. 


Stansell  v.  Jollard,  1    Selwyn,  N. 

P.  (11th  ed.)  457 

Stapenhorst  v.  American  Mfg.  Co. 

15  Abb.  Pr.  N.  S.  355 


193' 


.256* 


90> 

541 « 


288> 
541« 
3393 


443^ 


Staple  «.  Spring,  10  Mass.  72,  74. 

..44',  49^  51-.  522.  542 _  4792 
Starr  v.  Camden  &  A.  R.  Co.  24 

N.  J.  L.  592 

State   ®.   Adams,   78  Me.  486,  3 
New  Eng.  Rep.  243  .. 
V.  American  Forcite  Pow- 
der Mfg.  Co.  50  N.  .J. 
L.  75,  9  Cent.  Rep.  495  540^ 
V.  Atkinson,  24  Vt.  448...     70^ 
V.  Bell,  5  Port.  (Ala.)  379.   40(3' 
V.  Bell  Teleph.  Co.  36  Ohio 

St.  296 97' 

V.  Bennett,   79    Me.   55,   3 

New  Eng.  Rep.  616  ..    541« 

«.  Blount,  85  Mo.  543 535^ 

«.  Boston,  C.  &  M.  R.  Co. 

25Vt.  433 .-     873 

«.  Bruner,  111   Ind.   98,  9 

West.  Rep.  602 639^ 

V.  Buckman,  8  N.  H.  203, 

29  Am.  Dec.  646 

v.  Buidick,  15  R.  I.  239,  1 

New  Eng.  Rep.  870  . . 

V  Burlington,  36  Vt.  521, 

524. 

•p.  Cawood,  2  Stew.  (Ala.) 

360 

v.  Chicago,  M.  &  St.  P.  R. 
Co.  77  Iowa,  442,  4  L. 

R.  A.  298 .726,  247^ 

•0.  Craig.  80  Me.  85,  6  New 

Eng.  Rep.  160 541^ 

V.  Donohue,   49   N.   J.    L. 
548,  8  Cent.  Rep.  621. 

591^   6O53,  614,  626^ 

v.  Flannagan.  67  Ind.  140.    648' 
«.  Franklin  Falls  Co.  49  N. 

H.  240 

531\  532*,  549^  555» 

V.  Franklin  Falls  Co.  49  N. 

II.  250 .-  512' 

V.  Gilmanton,  9  N.  H.  461   512' 
V.  Gilmanton,  14  N.  H.  467, 

479. 

D.  Glen,  7  Jones,  L.  321... 

v.  Godwinsville  &   P.    M. 

R.  Co.  49  N.  J.  L.  266, 

9  Cent.  Rep.  128 70' 

V.  Gritfin,    89    Mo.    49,    4 

West.  Rep.  639 541^ 

V.  Hancock  Co.  Comrs.  11 

Ohio  St.  190 3393 

V.  Hunter,  106  N.  C.  796,  8 

L.  R.  A.  529 248' 


405' 

499*5 


State  V.  Illinois  Cent.  R.  Co.  33 

Fed.  Rep.  730 563' » 

V.  Jersey  City,  25  N.  J.  L. 

525 379' 

V.  Lamb,  8  Ired.  L.  229...    596^ 
V.  Luce  (Del.)  6  Cent.  Rep. 

862 293' 

V.  McDermott,  49  N.  J.  L. 
163,  4  Cent.  Rep.  559 

6068,  609^ 

V.  Manchester  &  L.  R.  Co. 

52N.  H.  528 23^ 

V.  Merritt,  35  Conn.  314  ..      W 
.  V.  Mohley,  1  McMull.  L  44     70^ 
V.  Moore,  :-ll  Conn.  479  ...      17' 
V.  Morns  &  E.  R.  Co.  25  N. 

J.  L.  437 35'  2 

V.  Nebraska  Teleph.  Co.  17 

Neb.  126 97' 

V.  Newark,  37  N.  J.  L.  415  69'^ 
V.  New  Brunswick   Street 

Cumrs.  42  N.  J.  L.  510     69^ 
V.  New   Brunswick    Street 

Comrs.  44  N.  J.  L.  116     69'^ 
V.  Otoe   County  Comrs.    6 

Neb.  132 481' 

V.  Portland,  74  Me.  268,  43 

Am.  Rep.  586 327^ 

«.  Portland,  74  Me.  271...  70' 
V.  Pumroy,  73  Wis.  664...  71'* 
®.  Rankin,  3  S.  C.  438....  656^ 
V.  Rives,  5  Ired.  L.  307...  485^ 
V.  Roberts,  59  N.  H.  256, 

47  Am.  Rep.  199 495* 

V.  Shannon,  36  Ohio  St.  423  506 
V.  Skolfield,  63  Me.  266... 

531'* '    549^ 

«.  Smitli,'  h'lYt.  '346 .'  531 ' 

V.  Snover,  42  N.  J.  L.  341 

.534,5343 

V.  Snover,  42  N.  J.  L.  345  533^ 
«.  Society  for  Establishing 
Useful   Manufactures, 

42  N.  J.  L.  504 121' 

V.  South   Carolina  R.    Co. 

28  S.  C.23.. 468',  477^ 

V.  Thompson,  2  Strobh.  L. 

(s.  c.)  l2...-75^  4033, 4753 

V.  Topeka,  36  Kan.  76....  628'« 
V.  Towle,     80  Me.    349,   6 

New  Eng.  Rep.  644...  535^ 
•».  Towle,   80  Me.   349,     6 

New  Eng.  Rep.  460...  5416 
V.  Trefethen  (Me.)  3  New 

Eng.  Rep.  842. 5416 

«.  Trenton,  36  N.  J.  L.  201  71' 
«.  Troth,  34N.  J.  L.  379..  71' 
V.  Tupper,  Dudlev,  L.  135  35' 
V.  TurnbuU,  78  Me.  392,  3 

New  Eng.  Rep.  45 541, 


TABLE   OF   CASES. 


Ixxxvii 


State  V.  Wilkinson,  2  Vt.  480...      70* 
V.  Williams  (Del.)  18  Atl. 

Rep.  949 4' 

V.  Williams,  30  N.  J.  L.  102  49* 
V.  Williams,  30  N.  J.  L.  112  46' 
v.  Willis,  104  N.  C.  764, 106 

N.  C.  804 537* 

V.  Wilson,  43  Me.  9 

1883.  4823,  560' 

V.  Witbam,  72  Me.  535....    620"- 
V.  Yopp,  97  N.  C.  477.. -8*,  299- 
Staten  Island  Rapid  Transit  R. 
Co.  V.  New  York,  119 

N.  Y.  96. 487' 

Steamboat  Globe  v.  Kurtz,  4  G. 

Greene,  433- 5303.531^ 

V.  Kurtz,  4  G.  Greene,  430 

...  4793,  480' 

Stearns  v.  Richmond  Paper  Mfg. 
Co.  (Va.)  14  Va.  L.J. 

465 238' 

Stebbins  v.  Mayer,  38  Kan.  573..  628" 

V.  Walker,  46  Mich.  5 610^ 

Stedman  v.  Smith,  8  El.  &  Bl.  1. 

210*   213   2333* 
Steele?).  SuTlivanr7'0  Ala.  589.. '."565' 
«.  Thatcher,  1  Ware,  91...   371* 
Steere  v.  Tiffany,  13  R.  I.  568... 

571',  576%  577« 

V.  Tiffany,  13  R.  I.  570.1768,  5701 
Steers  v.  Brooklyn,  101  N.  Y.  51, 

1  Cent.  Rep.  798. 385%  3973 
Steffen  v.    Chicago  &  N.  W.  R. 

Co.  46  Wis.  259 139' 

Stein  V.  Burden,  24  Ala.  130,  60 

Am.  Dec.  453.3553,428-,  44P 
V.  Burden,  24  Ala.  148....  452' 
«.  Burden,  29  Ala.  127,  65 
Am.  Dec.  394;  S.  C.  24 
Ala.  130,  60  Am.  Dec. 

453... 44P,  443«,  451^ 

Stephen  Morgan,  The,  94  U.  S. 

599,  24  L.  ed.  266. ...  369' 
Stephens  v.  Benson,  19  Ind.  369.  182' 
Stephenson  v.  Goff,  10  Rob.  (La.) 

99,  43  Am.  Dec.  171.-  397' 
Sterling,  The,  106  U.  S.  647,  27 

L.  ed.  98. 869' 

V.  Jackson,  69  Mich.  488, 

14  West.    Rep.  229.504,  507 
V.  Merrill,  124  111.  522,   14 

West.  Rep.  399. 342' 

V.  Thomas,  60  111.  264.342',  343'^ 
Sterling    Hydraulic   Co,   v.  Wil- 
liams, 66  111.  397 

204\  2213^224* 

Sterman  v.  Kennedy,  15  Abb.  Pr. 

201 775 

Stetson  D.  Chicago  &  E.  R.  Co.  75 

111.74 73« 


Stetson®.  Dow,  16  Gray,  372 255' 

V.  Faxson,  19  Pick.  147.75*,  474^ 
Stevens  v.  Kelley,  78  Me.  445,  3 
New   Eng.    Rep.   230, 

232 283',  284,  4403 

0.  Kelley  (Me.)  5  New  Eug. 

Rep.  871 548« 

V.  Orr,  69  Me.  323 1713,  1734 

V.  Paterson  &  N.  R.  Co.  34 

N.  J.  L.  532,  540.385',  393^ 

V.  Stevens,  11  Met.  251....    202' 

Stevenson?).  Erskine,99Mass.  367   1633 

v.  IStewart.  7  Phila,  293...    577* 

V.  Wallace,  27  Gratt.  77... 

38',  198-,  2163 

Stewart  v.  Putnam,  127  Mass.  403 

49\62" 

V.  Schneider,  22  Neb.  286.   299* 
Stiles  V.  Cardiff  Steam  Nav.  Co, 
33  L.  J.  N.  S.  Q.  B. 

310 624-^ 

V.  Cardiff  Steam  Nav.  Co. 
33  Q.  J.  N.  S.  Q.  B. 

311- 617' 

V.  Hooker,  7  Cow.  266 2623 

Stillwell  V.  Foster,  80  Me.  333,  6 
New  Eng.  Rep.  649... 

1613*,  1731 

Stimmel  v.  Watts  (Sup.  Ct.)  30  N. 

Y.  S.  R.  380 392* 

Stivers  v.  Home,  62  Mo.  473 230' 

Stock©.  Boston,  149  Mass.  410- - 

326%  329',  334-2 

Stockport  Water  Works  Co.  v. 
Potter,   7   Hurl.  &  N. 

159. 291« 

Stockton  V.  Baltimore  &  N.Y.  R, 
Co.  1  Inters. Com.  Rep. 
411,  32  Fed.  Rep.  9.. 

• 380',  466*5%  492',  538' 

Stoddard  v.  Filgur,  21  111.  App. 

560... .-    300-^ 

Stoffel  V.  Schroeder,  62  Mo.  150.    230' 
Stokes  V.  Saltonstall.  38  U.  S.  13 

Pet.  181,  10  L.  ed.  115   156- 
Stokoe  V.  Singers,  8  El.  «&  Bl.  36 

355%  357s 

V.  Singers,  8  El.  &  Bl.  31- 

39 5793 

Stone  V.  Clark,  1  Met.  378 163' 

V.  Donaldson,  1  Pinney,  393  5913 
V.  Fairbury,  P.  &  N.    W. 

R.  Co.  68  111.  394 82' « 

V.  Kopka,  100  Ind.  458....    5913 
v.  New   York,    25   Wend. 

173,  174 -.6' 3,  647' 

V.  Roscommon  Lumber  Co, 

59  Mich.  24 433* 

V.  Yeovil,   L.   R.   1   C.  P. 

Div.  691 453» 


Ixxxviii 


TABLE    OF   CASES. 


Storer  v.  Freeman,  6  Mass.  435, 
439 

V.  Freeman,  6  Mass.  439.. 

3788, 

Storrs  V.  Emerson,  72  Iowa,  390. 

V.  Utica.  17  N.  Y.  104.1141, 

Story  V.  New  York  E.  R.  Co.  90 

N.  Y.  122. 

842,  2924,  3114^ 

V.  New  York  E.  R.  Co.  90 

N.  Y.  122.  159. 

V.  New  York  E.  R.  Co.  90 

N.  Y.  185 -- 

Stoughton  V.  Baker,  4  Mass.  522. 

71^  4033,  4go8^ 

V.  Baker.  4  Mass.  523,  528 

V.  State,  5  Wis.  291 

Stough ton's  App.  88  Pa.  198 

Stout  V.  Keyes,  2  Doug.    (Mich.) 

184.... 

V.  Mc Adams,  3  111.67 

Stovall  V.  Emerson,  20  Mo.  App. 
322,  2  West.  Rep.  614. 

Stover  V.  Jack,  60  Pa.  339 

Strader  v.  Graham,  51   U.  S.  10 

How.  82,  13  L.  ed.  337 

Strang  v.  Newlin,  38  How.  Pr. 

364 

Stratton  v.  Currier,  81  Me.  497,  3 
L.  R.  A.  809,  and  note 

383*,  404*,  550, 

V.  Staples,  59  Me.  94 


V.  Staples.  59  Me.  95 

Streett  v.  Laumier,  34  Mo.  469 . . 

627', 

Strickler  v.  Todd,  10  Serg.  &  R. 

63 420*,  425.  426', 

Stringer  v.  Frost,  116  Ind.  477,  2 

L.  R.  A.  614 

Strong  V.  Benedict,  5  Conn.  210. 
Strother  v.  Lucas,  37  U.  S.  12  Pet. 

446,  9L.  ed.  1151.1883, 
Stroyhan  v.  Knowles,  6  Hurl.  & 

N.454 

Struthers  v.  Dunkirk,  W.  &  P. 

R.  Co.  87  Pa.  286 

Stuart  V.  Clark,  2  Swan  (Tenn.) 

9,  58  Am.  Dec.  49... 

389^4043, 

V.  Clark,   2  Swan,  15 

V.  Havens,  17  Neb.  211 

V.  Hawley,  22  Barb.  619.. 

185*, 

Studwell   T.  Ritch,  14  Conn.  292 

V.  Ritch,  14  Conn.  293.... 

Stump  V.  jMcNairy,  5  Humph.  363 

Stumps  V.  Kelley,  22  111.  140 

617^619'3 

Sturgis  V.  Robbins,  62  Me.  289.. 


378'2 

3931 
6345 
342' 


326^ 

435^ 

432* 

532' 
5505 

478« 
80« 

443* 
545* 

5953 

3783 

372' 
624* 

550* 

110' 
5683 

637' 

427* 

127* 

428- 

189' 
198 
922 


5503 

3773 
78« 

645= 

592'^' 
592' 
40«* 

,  620« 

6483 


Sturr  V.  Beck,  133  U.  S.  541,  33 

L.  ed.  761 

355*,  410^,  4453.  446» 

Stuyvesant  v.  Woodruff,  21  N.  J. 

L.133. 169«,241» 

Submarine  Tel.  Co.  v.  Dixon,  15 

C.  B.  N.  S.  759 610* 

Suffield  V.  Brown,  10  Jur.  N.  S. 

Ill 169^ 

V.  Brown,  33  L.  .J.  Ch.  249  168 
Sullivan  v.  Lafayette  Co.  Suprs. 

58  Miss.  790 

4805,  4812^  485* 

V.  Lafayette  Co.  Suprs.  58 

Miss.  799 482» 

V.  Phillips,  110  Ind.  320,  9 

West. Rep. 49. 290',  304^,  326^ 

V.  Royer,  72  Cal.  248 IP,  90* 

V.  Scripture,  3  Allen,  564.  611^ 
V.  Spotswood,  82  Ala.  163. 

...374',  406'^ 

V.  Spotswood,  82  Ala.  167.  403» 
V.  Webster,  16  R.  I.  —  ,5 

New  Eng.  Rep.  331...  464» 
Sullivan  Co.  v.  Arnett,  116  Ind. 

438... 6351-^ 

Summers  «.  Daviess  County,  103 

Ind.  262, 1  West.  Rep. 

'^17  3355' 

V.  PeopleV29'ifi'App."i70  532» 
Sunbury  &  E.  R.  Co.  v.  Hummell, 

27  Pa.  99 664* 

Sunnyside,  The,  91  U.  S.  208,  23 

L.  ed.  302.. 369' 

Supervisors  v.  United  States,  71 

U.  S.  4  Wall.  435,  18 

L.  ed.  419 339» 

Surocco  V.  Geary,  3  Cal.  69.. 5*, 63,  647» 
Sury  V.  Pigot,  1  Popham,  166 

.177,  573^  574* 

Susquehanna  Depot  v.  Simmons, 

112   Pa.  384,    3   Cent. 

Rep.   140... 124^  323* 

Sussex  V.  Stroder,  18  N.  J.  L.  108, 

121 ..339* 

Sutter  V.  Van  Derveer,  47  Hun, 

3G6 537'«,  54P 

Sutton  V.  Groll,  42  N.  J.  Eq.  213, 

4  Cent.  Rep.  251.. 246',  265* 
V.  Moody,  1  Ld.  Raym.  250, 

251 526*,  543' 

Sweeney  v.  Merrill,  38  Kan.  216. 

.135*,  642* 

®.  Shakespeare,  42  La.  Ann. 

387',  390'*,  391* 

Sweeny  v.  Old  Colony  &  N.  R. 

Co.  10  Allen,  368 

20*,  23',  253,  263,  150«,  566* 
V.  Old  Colony  &  N.  R.  Co. 

10  Allen,  372,  373... 19,  ^5^ 


TABLE  OF  CASES. 


IXXXIX 


Swett  V.  Cutts,  50  N.  H.  439,  447 

...12^  271'^.  295'.  299",  300= 

Swift?).  Coker,  83  Ga.  789 244^ 

V.  Goodrich,  70  Cal.  103..  409= 
Swindon   Water   Works    Co.   v. 

Wilts  &  B.  Canal  Nav. 

Co.  L.  R.  7  H.  L.  697. 

4.53',  456' 

V.  Wilts  &  B.  Canal  Nav. 

Co.  L.  R.  7  II.  L.  697, 

alKtming  L.   R.  9  Ch. 

451 4545 

Swords  V.  Edgar,  59  N.  Y.  28. . . 

44',  48, 

49' »,  51'=,  56^  58',  61',  565' 
V.  Edgar,  59  N.  Y.  34 

..   - 523,  58',  112,  112' 

Sykes  v.  Pawlet,  43  Vt.  446 125' 

Symonds  v.  Clay  County,  71  111. 

357  335' 

Syracuse,  The,  18  Fed.  Rep.  828  369^ 


T. 


Taff  Vale  R.  Co.  ■».  Giles,  23  L. 

J.  N.  S.  Q.  B.  43 639« 

Taggart  v.  Newport  St.  R.  Co.  16 

R.  I.  — ,  7  L.  R.  A. 

205 95=3,  2513 

Tainter  v.  Morristown,  19  N.  J. 

Eq.  59.... 71' 

Talbot  V.  Hudson,  16  Gray,  417, 

423,426 ..13^  5.32'' 

Talbott  V.  Grace,  30  Ind.  389 560' 

V.  King,  32  W.  Va.  6 95'' 

Tallmadge  v.  East  River  Bank,  26 

N.  Y.  105 160" 

Tanner  v.  New  York  Cent.  &  H. 

R.   R.  Co.   108  N.  Y. 

623,  11  Cent.  Rep.  82. 

651,  669'» 

Tapling  v.  Jones,  13  C.  B.  N.  S. 

876 255' 

Tappendorff  v.  Downing,  76  Cal. 

169 398'' 

Tardy  v.  Creasy,  81  Va.  556,  557  158'> 

Tarrant  v.  Terry,  1  Bay,  239 183" 

Tarry  v.  Ashton,  L.  R.   1  Q.   B. 

Div.  314.38,  105S  154^  232' 
Tate  V.  Ohio  &  M.  R.  Co.  7  Ind. 

479 82' 

Taylors.  Austin,  32  Minn.  247..  292" 
v.  Baltimore  &  O.  R.  Co.  33 

W.  Va.  39 353 

V.  Fickas,  64  Ind.  167,  31 

Am.  Rep.  114 

..280',  358=,  1483 

V.  Hampton,  4  McCord,  L. 

96 571',  575',  577"= 


Taylor*.  Hampton,  4  McCord,  L. 

96,    103 576* 

V.  Monroe,  43  Conn.  36.80=,  471* 
V.  New  York  &   L.  B.  R. 

Co.  38  N.  J.  L.  28.-..    265' 
V.  Peckliam,  8R.  I.  349,  352  339» 

V.  Welch,  6  Or.  198 280' 

V.  Whitehead,  2  Doug.  745   124" 
V.  Wilmington  &  M.  R.  Co. 

4   Jones,  L.  282,  285..   482» 
Temperance  Hall  Asso.  v.  Giles, 

33  N.  J.  L.  260-...36=,  108* 
Templeton  v.  Voshloe,  72  Ind.  134  325= 
Tenants.  Goldiug.  See  Tenant©. 
Goldwin. 
V.  Goldwin,   2  Ld.  Raym. 
10«9,  1  Salk.  21,  360- . 

124=,  588' 

V.  Goldwin,  2  Ld.    Raym. 
1089, 1  Salk.  21,  6  Mod. 

311,  Holt,  500 

.151,  287',  288"'^ 

Ten    Broeck     v.    Livingston,     1 

Johns.   Ch.  357,  1  N. 

Y.  Ch.  L.  ed.  170....   580' 

Tenem     Ditch     Co.    v.    Thorpe 

(Wash.  Terr.)  20  Pac. 

Rep.  588 4483,  446' 

Tenney  v.  Tuttle,  1  Allen,  185. ..   613» 
Terre  Haute  v.  Hudnut,  112  Ind. 
542,  11  West.  Rep.  333 

310^  316=,  323' 

V.  Hudnut,   112  Ind.    542- 

548,  11  West.  Rep.  333  326  * 
Terre  Haute  &  I.  R.  Co.  v.  Buck, 
96  Ind,   346,   49  Am. 

Rep.  186 657» 

V.  Clem,  123  Ind.  16,  7  L. 

R.  A.  588. 65G3 

«.  Graham,  95  Ind.  286 365' 

V.  Scott,  74  Ind.  29 90' 

Terry  «.  New  York,  8  Bosw.  504  256* 
V.  Smith,  47  Hun,  333.422",  427= 
Teschemacher  v.    Thomoson,  18 

CaJ.  21- ; 3783* 

Teutonia,  The,  90  U.  S.  23  Wall. 

77,  23  L.  ed.  44 369' 

Tewksbury  v.  Bucklin,  7   N.  H. 

518- 622* 

Texas  &  P.  R.  Co.  v.  Mangum,  68 

Tex.  342 41",  51 

V.   New   Orleans,   40  Fed. 

Rep.  Ill 469» 

V.    Ro.sedale   S.    R.  Co.  64 
Tex.  80,22Am.&Eng. 

R.  R.  Cas.  160 248=,  93" 

Thayer  v.  Arnold,  4  i\Iet.  589-. 

5913,  5924 

V.  Boston,  19 Pick.  511.... 

.336',  337=,  344* 


xc 


TABLE   OF   CASES. 


Thayer  e.  Boston, 19  Pick.511,514 

75*.  47# 

V.  New  Bedford  B.  Co.  125 

Mass.  253_. 474' 

■».  Payne,  3  Cush.  327 167' 

V.  Payne,  2  Cush.  3B1 166' 

V.  Payne,  2  Cush.  332.1746,  241^ 
Theise  v.  St.  Paul,  36  Minn.  526.    342' 
Theobold  v.  Louisville,  N.  O.  & 
T.  R.  Co.  66  Miss.  279, 

4L.  R.  A.  735 90' 

Third  Ave.  R.  Co., i^e  Petition  (N. 

Y.)9L.  R.  A.  124....     95^ 
Third  Municipality  «.  Blanc,  1 

La.  Ann.  385 602^ 

Thoburn  v.  Campbell,  bO  Iowa, 

338 644^,  649',  660' 

Thomas  v.  Armstrong,  7  Cal.  286  485 
V.  England,  71  Cal.  456...   263^ 

V.  Hill,  31  Me.  252. 576' 

V.  Kenyon,  1  Daly,  132...    302' 
V.  Morgan,  2  Cromp.  M.  »& 

R.  496 6043,  606^ 

V.  Thomas,  2  Cromp.  M.  & 

R.  33,  40 2556 

V.  Thomas,  2  Cromp.  M.  & 

R.  34 5735,  574 

®.  Western    Union    Teleg. 

Co.  100  Mass.  156 251' 

«.  Wiggers,  41  111.  471 166' 

«.  Winchester,  6  N.  Y.  397 

362^  6123 

Thompson  v.  Androscoggin  River 
Imp.  Co.  54N.  H.  545 

375'\  3773,  405' 

D.  Bertrand,  23  Ark.  731..    6358 
V.  Cincinnati,  L.  &  C.  R. 

Co.  54Ind.  197 129'' 

V.  Gibson,  7  Mees.  &  W.456     54' 
V.  McElarney,  82  Pa.  174 

..182',  1848 

V.  Miner,  30  Iowa,  386.166',  167' 
V.  New  York  &  H.  R.  Co. 
3  Sandf.  Ch.  625,  7  N. 
Y.  Ch.  L.  ed.  980....    487^ 
V.  North  Eastern  R.  Co.  31 

L.J.N.  S.Q.B.  194.5666,  567^ 
V.  Smith,  79 Me.  160, 4  New 

Eng.  Rep.  140 5416 

V.  Sumerville,  16  Barb.  473   209^ 
V.  The  Catharina,    1    Pet. 

Adm.  104. 371« 

«.  Uglow,  4  Or.  369 159'' 

Thomson  v.  Boonville,  61  Mo.  282  337^ 
Thornton  v.  Grant,  10  R.  I.  477.  360' 
Thorp  V.  Keokuk  Coal  Co.  48  N. 

Y.  253 230' 

Thunder  Bay  River  Booming  Co. 
V.  Speechly,  31  Mich. 
336 3774 


405' 

38' 2 

195 


2473 
616' 
125' 


Thunder  Bay  River  Booming  Co. 
«.  Speechly,  31  Mich. 

336,343 408* 

V.  Speechly,  31  Mich.  336, 

345 

Thurston®.  Hancock,12 Mass. 220 

V.  Hancock,  12  Mass.  221. 

Tiffany  v.  U.  S.  Illuminating  Co. 

Daily    Reg.    April    9, 

1884 

Tiffts  ».  Tiffts,  4Denio,  175 

Tighe  V.  Lowell,  119  Mass.  472.. 
Tilley  v.  St.  Louis  &  S.  F.  R.  Co. 

49  Ark.  535 666^  •* 

Tindley  v.  Salem,  137  Mass.  171   347'^ 

..347^  349^ 

V.  Salem,  137  Mass.  171, 172 

347^  349^ 

«).  Salem,  137  Mass.  171,174  351' 
V.  Salem,  137  Mass.  172... 

...3375,  3433,  345» 

V.  Salem,  137  Mass.  173...   334^ 
Tinicum   Fishing  Co.    v.  Carter, 

61  Pa.  21 3783, 

Tinkham  v.  Arnold,  3  Me.  120_. 

Tinsman  v.  Belvedere   Delaware 

R.  Co.  26  N.  J.  L.  148, 

69  Am.  Dec.  565 

Tipping  V.  St.  Helen's   Smelting 
Co.  4  Best  &  S.  600,  11 

H.  L.  Cas.  642 

Tohey  ■«.  Moore,  130  Mass.  448.. 
Tobin  V.  Portland,  S.  &  P.  R.  Co. 

59  Me.  183 

Todd  V.  Cochell,  17  Cal.  97 

272',  432', 

V.  Flight,  9C.  B.  N.  S.377 

...44*,  45' 4,46,  52^  53*,  64 

V.  Stokes,  10  Pa.  155 220' 

V.  Troy,  61  N.  Y.  506. 331^,  343- 
Toledo  &  W.  R.  Co.  v.  Goddard, 

25Ind.  185 3623 

Toledo,  P.  &  W.  R.  Co.  v.  Johns- 
ton, 74  111.  83 6363 

V.  Pindar,  53  111.  447. 654' 

Toledo,  W.  &  W.  R.  Co.  ■«.  Beggs, 

85  111.  80 156' 

».  Brannagan,  75  Ind.  490 

....128',  129' 

V.  Larmon,  67  111.  68. 668' 

V.  Maxfield,  72  111.  95 668-^ 

1;.  Muthersbaug,  71  111.  572  654' 
V.  Thompson,  71  111.  434..    639^ 

Tolman  v.  Casey,  15  Or.  83 447' 

Tomle  V.  Hampton,  129  111.  379.. 

20'3,  73'° 

Tomlin  v.  Dubuque,  B.  &  M.  R. 

Co.  32  Iowa,  106.3726,  386* 
Tomlinson  v.  Derby,    43   Conn. 

562 80'S  471» 


514' 

2372 


4912 


287'' 
160* 

5683 

440' 


TABLE    OF   CASES. 


XCl 


Timawanda  R.  Co.  v.  Hunger,  5 

Denio,  259 589 

Toomey  v.  Sauboin,  1-16  Mass.  28, 

5  New  Eng.  Rep.  549.  19'  » 
Toothaker».WinsIow.  61  Me.  123. 377'  ^ 
Tootle  V.  Cliftou,  22  Ohio  St.  247 

....2958,  298= 

Totel  V.  Bonnefoy,  123  111.  653, 

12  West.  Rep.  781....  262' 
Tourtelot  ».  Rosebrook,  11  Met. 

460 135^  6444,  648^ 

V.  Rosebrook,  11  Met.  462 

645«,  647'^ 

Tousey  v.  Roberts,  21  Jones  &  S. 

446 193 

Tower  v.  Tower.  18  Pick.  263...   626'^ 
TowDsend  v.  McDonald,  14  Barb. 

467 262^ 

V.  McDonald,  12  N.  Y.  381   571' 
V.  Wathen,  9  East,  277....    598' 
Tracy  v.  Atherton,  36  Vt.  503  ...    582^ 
Train  v.  Boston  Disinfecting  Co. 

144  Mass.  523,  4  "New 

Eug.  Rep.  437 13* 

Tranter  v.  Sacramento,   61   Cal. 

275 3413 

Trask  v.  Shotwell,  41  Minn.  66..     21^ 
Treadwell  v.  Inslee,  120  N.  Y.  458 

168-*,  2BV 

Treat  v.  Bates,  27  Mich.  390.. 79',  478« 
®.  Lord.  42  Me.  552. 

377^  404^  406',  412^,  550" 
Tremain  v.  Cohoes  Co.  2  N.  Y. 

163  39*^ 

Trompen  v.  Verhage,  54  Micli.'soi  626'^ 
Trausclair  v.  Pacific  Coast  S.  S. 

Co.  80  Cal.  521 3633 

Trowbridge    v.    Brookline,    144 

Mass.  139,  3  New  Eng. 

Rep.  789 257^  266 

Trower  v.  Chadwick,  3  Bing.  N. 

C.  334 38- 

«).  Chadwick,  3  Bing.  N.  C. 

334,  6  Bing.  N.  C.  1.. 

- .1993,  201' 

Troxel  v.  Vinton,  77  Iowa,  99...    129^ 

Troy  V.  Coleman,  58  Ala.  570. . .     326^ 

V.  Troy  &  L.  R.  Co.  4y  N. 

Y.  657. 114' 

Truro,  The,  31  Fed.  Rep.  158...    370'^ 
Trustees  v.  Lynch,  70  N.  Y.  440.   228' 

«.  Tatman,  13  111.  27. 479'' 

Trustees  of  Brook  liaveu^j.  Strong, 

60  N.  Y.  56 498'\  501^ 

Tubervil  v.  Stamp,  1  Salk.  13  ... 

641'»,  644' 

v.  Stamp,    1    Salk,    13,    13 

Mod.  152 647- 

Tucker  v.  Henniker,  41  N.  H.  317  127'« 
V.  Howard,  122  Mass.  529.    242» 


Tucker  t).  Illinois  C.  R.  Co.(La.)7 
So.  Rep.  124 

....27^53^  l02^  1043,  los' 

V.  Jewett,  11  Conn.  321...    574« 
V.  Salem    Flouring    Mills 

Co.  15  Or.  581  ...433',  441' 
Tudor  Ice  Co.  v.  Cunningham,  8 

Allen,  139 242^ 

Tuflf  V.  Warman,  5  C.  B.  N.  S.  573  365' 
Tugwell  V.  Eagle  Pass  Ferry  Co. 

74  Tex.  492 481-' "f* « 

Tulk  V.  Moxhay,  3  Phill.  Ch.  774 

224^  228- 

Turalin  v.  Parrott,  82  Ga.  732...    5W 

Tupper  V.  Clark,  43  Vt.  200 144* 

Turnbull  v.  Rivers,  3  McCord,  L. 

89 168« 

V.  Rivers,  3  McCord,  L.  131   425« 

Turner  v.  Buchanan,  83  Ind.  147   128« 

V.  Coffin,  12  Allen,  401.-..    183^ 

«.  Cory,  5  Ind.  216 628' 

«.  Dartmouth,  13  Allen,  291 

3473,  349^  350 

V.  Fitchburg     R.    Co.    145 
Mass.  433,  5  New  Eng. 

Rep.  423 2393 ' 

®.  Holland,  65  Mich.  453.  8 

West.  Rep.  796...402S  517'^ 
».  Mirfield,  34  Beav.  390..       8^ 
V.  Newburgh,  109  N.Y.  301   115' 
Tuttlew.  Brush  Electric  &  111.  Co. 

50  N.  Y.  Super  Ct.  464  247^ 
V.  Chicago,  R.  I.  &  P.  R. 

Co.  48  Iowa,  236 155* 

v:  Harry,  56  Conn.  194,  6 

New  Eng.  Rep.  483...   421' 
Twenty-Ninth  Street,  Be,  1  Hill, 

189  255 

Twigg  V.  Ryland,  62  Md.'sso"" 

6063',  61 9^  624«,  630-3 

Tyler  v.  Hammond,  11  Pick.  193  573^ 
V.  Hammond,  11  Pick.  193, 

220. 574'' 

1}.  Wilkinson,  4  Mason,  397 

389-,  410',  4423,  4442 

v.  Wilkinson,  4  Mason,  400   544- 
Tyrrell  v.  Lockhart,  3  Blackf.  136  4033 


U. 


Ulbricht  v.  Enfaula  Water  Co.  86 

Ala.  587. 

410'.  411'.  457\  477' 

Uline  V.  New  York  Cent.  <Sc  H.  R. 
R.  Co.  101  N.  Y.  89,  2 
Cent.  Rep.  116 4698 

Union   Canal    Co.    v.   Landis,   9 

Watts,  228 380^ 


xcu 


TABLE    OF    CASES. 


Union  Mill  &  Min.  Co.  v.  Ferris, 

2  Sawy.  176.. 

44 1^  442^  443«,  444^ 

Union   Pac.  R.  Co.  v.   Rollins,  5 

Kan. 167.. .   59P 

Union    Sprins^s  v.  Jones,  58  Ala. 

654 326^ 

Union   Trust   Co.    v.    Cuppy,  26 

Kan.  754 435* 

United    States    v.    Appleton,     1 

Sumn.  492   

...162,  175'-,  171«,  191',  419* 
V.  Baltimore  &  O.  R   Co.  1 

Hughes,  C.  C.  188.182',  184« 
V.  Bevans,     16    U.     S.     3 
Wheat.    336,  4  L.  ed. 

404 371''8 

V.  Hoskins,  5  Mackev,  478, 

8   Cent.  Rep.  705 628''^ 

1).  New  Bedford  Bridge,  1 

Woodb.  &  M.  487..-.    374» 
V.  Nickerson,  58   U.  S.  17 

How.  204,  15L.  ed.  219   531' 
V.  Paclieco,  69  U.  S.  2  Wall. 
587,  17  L.  ed.  865.... 

378^  379',  383*,  393' 

V.  Railroad   Bridge    Co.    6 

McLean,  517 79' 

V.  The  Montello.  87  U.   S. 
20  Wall.   442,  443,  22 

L.  ed.  394 374^ 

Upham  ■B.Worcester,  113  Mass.  97     91' 
Upjohn  V.  Richland  Bd.of  Health, 

46  Mich.  542 276 

Urquhart  o.  Ogdensburg,  91  N.  Y. 

67 318 


V. 


Vail  V.  Mix,  74  III.  127. 497= 

V.  Mix,  74  111.  128 427' 

Valentine  v.  Piper,  22  Pick.  85..  380« 
Van   Bergen   v.   Van  Bergen,    2 

Johns.    Ch.  272,  1   N. 

Y.  Ch.  L.  ed.  875....  476* 
V.  Van    Bergen,    3  Johns. 

Ch.  282,  1   N.  Y.  Ch. 

L.  ed.  619 5453 

Van  Bibber  v.  Hilton,  84  Cal.  585  459' 
Vancouver,  The,  2  Sawy.  381... 

.-4793,  480',  530^  5315 

Vandegrift  B.  Delaware  R.  Co.  2 

Houst.  287 59P 

Vandenburg  v.  Truax,  4  Denio, 

464. .654',  6552 

V.  Van   Bergen,  18  Johns. 

212... 287'^ 

Vanderwiele  v.  Taylor,  65  N.  Y. 

341 302'  2 


Vandewalker  v.  Osmer,  65  Barb. 

556.. 634» 

Van  Epps  v.  Mobile  Co.  Comrs. 

25  Ala.  460 3393^ 

Van  Fleet  t\  New  York  Cent.  & 

H.  R.  R.  Co.  (Sup.  Ct.) 

27  N.  Y.  S.  R.  76....  652» 
Van  Hoesen  v.  Coventry,  10  Barb. 

521... 409^* 

Van  Horn  v.  Grand  Trunk  R.  Co. 

18  U.  C.  Q.  B.  856...  428^ 
Van  Leuven  v.  Lyke,  1  N.  Y.  515 

585^586^ 

587',  591*.  5936,  604',  629' 
Vannest  v.  Fleming.  79  Iowa,  638  3042- 
Van  Ohlen  v.  Van  Ohlen,  56  111. 

528. 182* 

Van  Pelt  v.  Davenport,  42  Iowa, 

302 321'- 

V.  Davenport,  42  Iowa,  308, 

20  Am.  Rep.  622 

.290^  815,  325' 

Van  Sickle  v.  Haines,  7  Nev.  249  444* 
Van    Steenburgh    v.    Tobias,    17 

Wend.  562. 594^627^^ 

Van  Wagenen    v.  Cooney,  45   N. 

J.  Eq.  24 477* 

Van  Winkle  v.  Am.  S.  B.  I.  Co. 

(N.  J.)19Atl.  Rep.  472 

1053,  154' 

VanWormer  v.  Albany,  15  Wend. 

262... 648* 

Van  Wycklyn  v.   Brooklvn,   118 

N.  Y.  424....."...808S  425« 

Varick  v.  Smith,  5  Paige,  143 855* 

V.  Smith,  9  Paige,  187,  3  N. 

Y.  Ch.  L.  ed.  659 548' 

V.  Smith,  9   Paige,   547,    4 

N.  Y.  Ch.  L.  ed.  811. 

386',  889^  405' 

Varney  ■».  Manchester,  58  N.  H. 

430... .-    126' 

Vates  V.  Cornelius,  59  Wis.  615..  634* 
Vaughan  v.  Menlove,  3  Bing.  N. 

C.  468 ..6443,647* 

V.  Menlove,  3  Bing.  N.   C. 

468,  4  Scott,  N.  R.  244    641 
V.  Menlove,  8  Bing.  N.  C. 

468,  7  Car.  &F.  525..    151* 
13.  Taff  Vale  R.  Co.  3  Hurl. 

&  N.  743 665^ 

V.  Taff  Vale  R.  Co.  5  Hurl. 

&  N.  678 .185^  667' 

V.  Taff  Vale  R.  Co.  5  Hurl. 

&N.  679 138',  648* 

Veazie  v.  Dwinel,  50  Me.  479.404«,  550* 
Vedder  v.  Vedder,  1  Denio.  257.  287* 
Veghte  V.  Raritan   Water  Power 

Co.  19  N.  J.   Eq.    153 

181',  182* 


TABLE   OF    CASES. 


XCIU 


Vegbte  V.  Raritan  "Water  Power 

Co.  19  N.  J.  Eq.  156.  571' 

Venard  v.  Cross,  8   Kan.  248 79' 

Yicksburg  &   M.  R.  Co.  v.  Alex- 
ander. 63  Miss.  496...   247- 
Yictoria  Co.   v.  Victoria   Bridge 

Co.  68  Tex.  62 88« 

Victory  v.  Balier,  67  N.  Y.  366..     19' 
Vincennes  v.  Richards,  23   Ind. 

481 304\  31 1\  322,  330* 

Vinton  v.  Welsli,  9  Pick.  8T....     532 
Virginia  Elirman,  Tlie,  97  U.  S. 

3U0,  24   L.  ed.  890..-.    369' 

Yoeler  e.  Geiss,  51  Md.  407 

571',  577«,  578^ 

Yolk  V.  Eldred,  23  Wis.  410.377' '-,  550^ 

Volunteer,  The,  1  Sumn.  551 371^ 

Yooght  V.  Winch,  2  Barn.  &  Aid. 

662 -...374^  4033,  4603 

Voter  V.  Hobbs,  69  Me.  19-..167\  419- 
Yrooman  v.  Lawyer,  13  Johns.  339 

586^  607= 


W. 

Wabash,   St.  L.  &  P.   R.   Co.  v. 

Farver.  Ill  Ind.  195,  9 

West.  Rep.  621 328' 

V.  Locke,  112  Ind.  404,  11 

West.  Rep.  877 

131^  139,  145^  6563 

Wadhurst  v.  Damme,  Cro.  Jac. 

45 ....6378,  628* 

Wadsworth  v.  Smith,  11  Me.  278, 

26  Am.  Dec.  525. 376-', 

3771234  404«_  4123,  416,  5503 
V.  Tillotson,  15  Conn.  366, 

39  Am.  Dec.  391,  note 

442',  443'  « 

Waco  V.  Powell,  32  Tex.  258 602* 

Waffle  V.  New  York  C.  R.  Co.  58 

Barb.  413 326^  478« 

Waggoner  v.  Jermaine,  3  Denio, 

306 483,  493^  512  4 

Wagner  «.  Bissell,  3  Iowa,  396..   593- 
V.  Hanna,  38  Cal.  lll_159^  175-' 
Wahle  V.  Reiubach,  76  111.  333  ..    288* 
Wakelin  v.  London  &  S.  W.  R. 

Co.  L.  R.  12  App.  Cas. 

51 364 

Walcott  V.  Swampscott,  1  Allen, 

101 347-,  351',  335'- 

Waldron  «.  Haverhill,  143  Mass. 

582,  3  New  Ene.  Rep. 

683 r 351 

Walesa.  Ford,  8  N.  J.  L.  267...   622^ 

Walker  v.  Allen,  72  Ala.  456  ...    406^ 

i\  Armstrong,  2  Kan.  198.   480' 

V.  Bean,  34  Minn.  427 557' 


Walker  iJ.Boardof  Public  Works, 

16  Ohio.  540 463= 

V.  Cronin,   107  Mass.    555, 

564. 12' 

V.  DeraturCounty,  67Iowa, 

307 128' 

7J.  Filts,  24  Pick.  191 633' 

V.  Herron,  22  Tex.  55 632' 

V.  Hoisington,  43  Vt.  608..    635« 
v.  Jackson;  11  Mees.  &  W. 

161.. 488» 

«.  Shackelford,  49  Ark.  503  231' 
V.  Shepardson,  2  Wis.  384. 

468' 

D.  Shepardson.  2  Wis.  384, 

4  Wis.  486 79' 

V.  Shepardson,  4  Wis.  486. 

4'i3-,  5503 

V.  Shepardson,  4  Wis.  495.   412= 

Wall  V.  Livezay,  6  Colo.  465 156* 

Wallace  v.  Evans,  43  Kan.  509, 

8L.  R.  A.  52 436^ 

».     Muscatine,    4    Greene 

(Iowa),  373 3283 

Wallen  v.  McHenry,  3  Humph. 

245_ 4883 

Wallis  V.  Harrison,  4  Mees.  &  W. 

538. 185« 

Walsh  V.  Mead,  8  Hun,  387. 27^,  45,  49' 
V.  Virginia  &  T.  R.  Co.  8 

Nev.  Ill 147' 

Walter  v.  Wicomico  Co.  35  Md. 

385.. 75\  4753 

Walters  v.  Pfeil,  Moody  &  M.  363 

193,  1992 

Waltham  «.  Kemper,  55  111.  346.   3393 
Wamesit  Power  Co.  v.  Allen,  130 

Mass.  352 4583 

Wanderer,  The,  20  Fed.  Rep.  140  370- 
Wanger  v.  Hippie  (Pa.)  11  Cent. 

Rep.  776. 237«,  263' 

Ward  V.  Andrews,  3  Mo.  App. 

275  38- 

V.  Creswell,  wTlfe's,  255 "^  499'' 

V.  Neal,  37  Ala.  501 180-2 

V.  Paducah  So  N.  R.  Co.  4 

Fed.  Rep.  863 6322 

V.  Ward,  7  Exch.  838 58P 

Warj  V.  Allen,  140  Mass.  513,  1 
New  Eng.  Rep.  733.. 

r... 4093,  5443,  547" 

V.  Gay.  11  Pick.  106 156' 

Warfel  v.  Knott,  128  Pa.  528 208- 

Warhauer  r.  Randall,  109  !Mass. 

586 578' 

Waring  v.  Clarke,  46  U.  S.  5  How. 

441,  12  L.  ed.  226  ....    371^ 
Warne  v.  Oberly,  50  N.  J.  L.  108, 

9  Cent.  Rep.  502 603'' 

Warner  v.  Cushman,  83  Me.  168  433'  ' 


xciv 


TABLE   OF    CASES. 


Warren  v.  Blake,  54  Me.  276 

l63^  l68^  i69«,  1732 

V.  Blake,  54  Me.  281 573^ 

V.  Chambers,  25  Ark.  120, 

4  Am.  Rep.  23 3998  10 

V.  Kauffman,  2  Phila.  259.    256* 

V.  Mathews,  6  Mod.  73 500^ 

V.  Matthews,  1  Salk.  357..    532^ 
V.  Spencer  Water  Co.  143 
Mass.  9,  3  New  Eng. 

Rep.  Ill -   4583 

«.  Spencer  Water  Co.  143 
Mass.  155,  163,  3  New 

Eng.  Rep.  502 550« 

V.  Wright,  3  111.  App.  288.    342' 
Warsaw  v.  Dunlap,  113  In.l.  576     99= 
V.  Dunlap,  112  Ind.  579, 12 

West.  Rep.  141..  101',   333^ 
Washburn  t>.  Cuddihy,  8  Gray, 

430 - -    635« 

Washington,    The.    76    U.    8.    9 
Wall.  513, 19  L.ed.  787 

369'2 

Washington  Cemetery  v.  Prospect 
Park  &  C.  I.  R.  Co.  08 

N.  Y.  591... .--      90' 

«.  Prospect  Park  &  C.  I.R. 

Co.  68  N.  Y.  591,  593      93* 
Washington  Ice  Co.  v.  Shortall, 

101  111.  46.. -389'.  413',  513'^ 
Washington  Natural  Gas  Co.  v. 
Wilkinson  (Pa.)  2  Atl. 

Rep.  338 247= 

Washington  Toll  Bridge  Co.  v. 

Beaufort,  81  N.  C.  491   484'^ 
Wasmer  v.  Delaware.  L.  &    W. 
R.  Co.  80  N.  Y.  212, 

36  Am.  Rep.  608 652' 

Wason  V.  Rowe,  16  Vt.  525 635= 

Waters  v.  Lilley,  4  Pick.  145 

l88^  5131 

V.  Moss,  12  Cal.  535, 73  Am. 

Dec.  561,  note 608' 

Watertown  v.  Mayo,  109  Mass. 

315  133 

Watkins  v.  Ho[manV4i'uVsri6 

Pet.    25.    10    L.     ed. 

873 399' 

V.  Peck,  13  N.  H.  360  .... 

236^  582' 

V.  Peck,  13  N.  H.  376  ....  582'^ 
Watson  V.  Alden,  8  Mass.  136...  442* 
V.  Gray,  L.  R.  14  Ch.  Div. 

192 210-',  213 

v.  Grav,  L.  R.  14  Ch.  Div. 

192,  194 209* 

».  Home,  64  N.  H.  416,  6 

New  Eng.  Rep.  386..  398^ 
V.  Kingston,  114  N.  Y.  88. 

80',  302',  8O33 


Watson  V.  Lisbon  Bridge,  14  Me. 

201 635'» 

V.  Peters,  26  Mich.  508 

..412*,  517*- 

«.  Phelps,  40  Iowa,  482...  230' 
Watt  v.  Trapp,  2  Rich.  L.  136...  235*^ 
Watts  V.  Kelson,  L.  R.  6  Ch.  App. 

106. 166',  171' 

Watuppa  Reservoir  Co.  v.  Fall 
River,  134  Mass.  267. 

.268',  456-^ 

V.  Fall  River,  147  Mass.  548, 

1  L.  R.  A.  466... 3833,  456=^ 
Wave,  The.  v.  Hyer,  2  Paine,  131, 

Blatchf.  &  H.  235....  371'' 
Weatherby    v.    Meiklejohn,     56 

Wis.  73 402' 

Weathered  v.  Bray,  7  Ind.  706  ..  247- 
Webb  V.  Laird,  59  Vt.  108,  3  New 

Eng.  Rep.  586  ...5473,  5494 
V.  Rome,  W.  &.  O.  R.  Co. 

49  N.  Y.  420. 64P,  650,  655'^ 
®.  Russell,  3T.  R.  393 

219,  220* 

Webber  v.  Eastern  R.  Co.  2  Met, 

151- 163' 

V.  Pere    Marquette    Boom 

Co.  62  Midi.  626 51 7= 

Weber  v.  State  Harbor  Comrs.  85 

U.  S.  18  Wall.  57,  21 

L.ed. 798 

3o9^  388=*,  390' 2.  492* 

V.  State  Harbor  Comrs.  85 

U.  S.  18  Wall.  66,  21 

L.  ed.  802 493' 

Webster  v.  Lowell.  142  Mass.  324, 

2  New  Eng.  Rep.  674.  235« 
V.  Stevens,  5  Duer,  553 

206',  207-'  6,  2083,  2098,  233* 
WeddelJ  t>.  Hapner(Ind.)  24  N.  E. 

Rep.  368 300- 

Weed  V.  Ballston  Spa,  76  N.  Y. 

329.. .,..342',  343= 

V.  Keenan,    60    Vt.    74,    6 

New  Eng.  Rep.  250..  582'  3 
Weet  v.  Brockport,  16  N.  Y.  161, 

note....Zll,  326*,  342=,  344' 
V.  Brockport,  16  N.  Y.  161, 

167,  note SSS* 

V.  Brockport,  16  N.Y.  161, 

172,  note.. 327* 

Weide  v.  Thiel,  9  111.  App.  223..  630'5 
Weightman  v.  Washington,  66  U. 

S.  1   Black,  39,  17  L. 

ed.  52 340',  344* 

Weill  -0.  Baker,  39  La.  Ann.  1102 

204=,  206=,  2073 

Weis  V.  Madison,  75  Ind.  241,  39 

Am.  Rep.  135 

291=,  312',  325=,  357»' 


TABLE    OF    CASES. 


xcv 


Weisec.  Smith,  3  Or.  445. .-405'.  SoO^ 
V.  Smith,  3  Or.  445,  448...    377* 
Weiss  V.  Oregon   I.  &   S.  Co.  13 

Or.   496 355\  410'.  457^ 

Weituer  v.  Dehxware  Caual  Co.  4 

Robt.  234 56G3 

Welch  V.  Boweii,  103  Ind.  253,  1 

West.  Rep.  305 599' 

V.  McAllister,  15  Mo.  App. 

492 193,  205 

V.  Wilcox,  101  Mass.  102..   242^ 
V.  Wilcox.  101    Mass.    162, 
104,  100  Am.  Dec.  113, 

HO/e,  115,  lis 161' 

W^eld  V.  Hornbv,  7  East,  195. ..    5;322 
V.  Nichols,  17  Pick.  538. .    222'^ 
Weldon  v.  Harlem  R.  Co.  5  Bosw. 

576 6128 

Welfare  v.  London  &  B.  R.  Co. 

L.  R.  4Q.  B.  633 139^ 

t).  London  &  B.  R.  Co.  L. 

R.  4  Q.  B.  698 146« 

Wellbourn    v.    Davies,   40    Ark. 

87 70' 

Wellcome  r.  Leeds,  51  Me.  313..     35' 
Weller  v.    McCormick  (N.  Y.)  8 

L.  R.  A.  798 110' 

V.  McCormick,  47  N.  J.  L. 
397,  1  Cent.  Rep.  462. 

..69^  103',  1234 

V.  Snover,  42  N.  J.  L.  341 

54P,  5498 

Welles  V.  Bailey,  55  Conn.  292,  4 
New  Eng.  Rep.  841  _. 

..._398«',  399' 

Wellington  v.  Downer  K.  O.  Co. 

104  Mass.  64., 1072 

Wells  V.  Head,  4  Car.  &  P.  568..    626^ 
V.  Howell,  19  Johns.  385.. 

589*,  591' ^«,  5963,  604' 

V.  Sibley  (N.  Y.)  31  N.  Y. 

S.  R.  40 115' 

V.  Walters,  5  Bush,  351...    595=* 
Welsh  v.  Wilson,  101  N.  Y.  254, 

2  Cent.  Rep.  749.101- «,  250 
Welter  v.    St.    Paul,    40    Minn. 

460.... 342' 

Welton  V.  Martin,  7  Mo.  307 79' 

Wendell  v.  Baxter,  12  Gray,  494. 

..5663,  5683 

V.  Pratt,  12  Allen,  464 256' 

Wenzlick  v.  McCotter,  87  N.  Y. 

122. 545,  107'» 

Werfelman  v.  Manhattan  R.  Co. 
(C.  P.)  32  N.  Y.  S.  R. 

682 180^ 

Wesson  v.  Washburn  Iron  Co.  13 

Allen,  95 2913,474',  478« 

V.  Washburn   Iron   Co.  13 

Allen,  95,  101 75-',  4743 


West  Cumberland  Iron  &  S.  Co. 
V.  Kenyon,  L.  R.  6  Ch. 
Div.  773,  reversed  on 
app.  L.  R.  11  Ch.  Div. 

782 270» 

v.  Kenyon,  L.    R.    11    Ch. 

Div.  782 148'.  280' 

Western  College  v.  Cleveland,  12 

Ohio  St.  377 342' 

Western  S.  F.   Soc.  v.  Philadel- 
phia, 31  Pa.  185,  189.   338* 
Western  Union  Telcg.  Co.  v.  Ey- 
ser.    91    U.  S.  495,   23 

L.  ed.  377,  note 252' 

V.  He\vett{D.  C.)4  Mackey, 

424,  2  Cent.  Rep.  695.      73* 
V.  New  York,  38  Fed.  Rep. 

552,  3  L.  R.  A  449...     983 

V.  Quinn,  56  111.  319 612'^ 

V.  Rich,   19   Kan.    517,   27 

Am.  Rep.  159.. 97» 

V.  Williams  (Va.)  8  L.  R. 

A.  429 25P 

Westfall  V.  Van  Anker,  12  Johns. 

425. -.4985,  499- 

West  Mahanoy  Twp.  v.  Watson, 

116  Pa.  344 1063 

Weston  V.  Arnold,  L.   R.  8  Ch. 

App.1090 210 

V.  Sampson,  8  Cush.  347.. 

..-.495',  510',  536^ 

V.  Tailors  of  Potterow,  14 

F.  C.  1232 4P,  623,  2.562 

West  Roxbury  v.  Stoddard,  7  Al- 
len, 158 510' 

V.  Stoddard,  7  Allen,   158, 

169 341' 

V.  Stoddard,  7  Allen,   158, 

171- 3743,  492* 

V.  Stoddard,  7  Allen,  167..   512' 
V.  Stoddard,  7  Allen,  169- .   455- 
Wethersfield    ».    Humphrey,   20 

Conn.  218 374* 

Wetmore  v.  Fiske,  15  R.  I.  366,  4 

New  Eng.  Rep.  794..    259» 

V.  Story,  22  Barb.  414 728 

Wettor  V.  Dunk,  4  Fost.  &  F.  298 

27',  73» 

Weyman  t\  Ringold,  1  Bradf.  41     223 

V.  Ringold,  1  Bradf.  61 204' 

Whalen  «.  Gloucester,  4  Hun,  24     50' 
V.  Gloucester,  6  Thomp.  & 

C.  135,  4  Hun,  24....  46' 
Whaley©.  Jarrett,  69  Wis.  613..  245* 
Whalley  v.  Thompson,  1   Bos.  & 

P.  374,  note 419^ 

Wharf  Ca.se,  The,  3  Bland,   Ch. 

361 564* 

Whatley  v.  .Murrell,  1  Strobh.  L. 

389 656» 


XCVl 


TABLE   OF   CASES. 


Whcatley  v.  Baugh,  25  Pa.  528.. 

12-,  280,  28P,  286 

V.  Chrisman,  24  Pa.  298... 

288«,  421^,  460' 

V.  Chrisman,  24  Pa.  303.425,  426» 
Wheeldon  v.   Burrows,  L.  R.  12 

Oh.  Div.  31,  49- 174'' 

V.  Burrows,  37  Week.  Rep. 

165. - --    169' 

Wheeler®.  Bedford,  54  Conn.  246, 

2  New  Eng.  Rep.  831.     77* 
V.  Brant,  23  Barb.  324.... 619'  ^s 

V.  Clark,  58  N.  Y.  267 176* 

V.  Northern  Colo.  Irrigation 

Co.  10  Colo.  582 4473 

V.  Plymouth,  116  Ind.  158  310^ 
«.  Reynolds,  66  N.  Y.  227  184^ 
V.  Townshend,  42  Vt.  15..  637' 
V.  Westport,  30  Wis,  393..  125' 
V.  Wheeler,  33  Me.  347...  201» 
V.  Worcester,  10  Allen,  591  SSI* 
Whetstone  v.  Bowser,  29  Pa.  59.  284' 
Whisler  v.  Wilkinson,  22  Wis.  572 

4035,  405',  412' 

White  V.  Bass,  7  Hurl.  &  N.  732.  174^ 
V.  Bond  County,  58  111.  297  339=* 
V.  Chapin,  12  Allen,  516-299%  351 
».  Chapin, 12  Allen,  516,520  348^ 
«.  Charleston,  2  Hill  (S.  C.) 

571... --    3893 

V.  Crawford,  10  Mass.  183. 

- 571',  577' 

V.  France,  L.    R.    2  C.  P. 

Div.  308-20^  1503,  567^,  568* 
V.  Harworth,  21   Mo.  App. 

439,  4    West.  Rep.  789   602' 
V.  Hindley  Board  of  Health, 

L.  R.  10  Q.  B.  219.--.    338^ 
t.  Jameson,  L.   R.   18  Eq. 

303 149,  1493 

V.  Montgomery,  58  Ga.  204  256-2 
V.  Osburn,  21  Wend.  72--.  20P 
V.  Phillips,  15  C.  B.  N.  S. 

245 --    566« 

V.  Phillipston,  10  Met.  108, 

110--.- - 339* 

«.  Petty,  57  Conn.  576-531',  537^ 

V.  Scott,  4  Barb.  56 594^ 

«.  Sheldon  (Sup.  Ct.)28N. 

Y.  S.  R.  475 - 

.-263%  296*,  300%  303^  469* 
V.  South   Shore  R.    Co.    6 

Cush.  413 -   532^ 

V.  Storms,  21  Mo.  App.  388, 

4  West.  Rep.  739 586* 

V.  Tallman,  26  N.  J.  L.  67  600^ 
V.  WinnisimmetCo.7Cush. 

155 - 488- ^  490' 

Whitehouse  v.  Fellowes,  30  L.  J. 

N.  S.  C.  P.  305 3703 


White  River  Tump.  Co.  v.  Ver- 
mont C.  R.  Co.  21  Vt. 
590 89' 

White's  Bank  v.   Nichols,  64  N. 

Y.  65 571',  575' 

Whitmore?).  Bownan, 4  G.Greene, 

148 --   488* 

Whitney  v.  Gauche,  11  La.  Ann. 

443.--. 375« 

«.  Huntington, 37  Minn.  197  269' 
v.  Sanders,  3  Pitts.  L.  .J.  226  302' 
V.  Taylor,  54  Barb.  536...  634« 
V.  Union  R.  Co.  11   Gray, 

359 -.--181',  187-.  202^  329' 
9).  Wheeler    Cotton     Mills, 
151  Mass.  396,  7  L.  R. 

A.  613-- ----  8', 

423*  ^  424',  425\  544*.  548^ 
Whitsett  V.  Union  D.  &  R.  Co.  10 

Colo.  243 79^ 

Whittier  v.  Chicago,  M.  &  St.  P. 

R.  Co.  26  Minn.  484..   147' 
V.  Cocheco  Mfg.  Co.  9  N. 

H.  454..- 262^  287^ 

Wickersham  v.  Orr,  9  Iowa,  260.  182' 
Wickes  V.  Clutterbuck,  2  Bing. 

483..- 528'^ 

Wiedekind  v.  Tuolumne  Countv 

Water  Co.  83  Cal.  198  440' 
Wiggins  V.  Boddinffton,  3  Car.  & 

P.  544.^-       126^  47o- 

V.  McCleary,  39  N.  Y.  346.   580^ 
Wiggins  Ferry   Co.   v.  East  St. 

Louis,  102  111.  560---.   481* 
■p.  Ohio  &  M.  R.  Co.  94  111. 

95  221' 

Wilbur  «.  Hubbard ^35  Barb.  303  595^ 
Wild  V.  Skinner,  23  Pick.  255---  603^ 
Wilder  v.  Maine  Cent.  R.  Co.  65 

Me.  332 664' 

V.  St.  Paul,  13  Minn.  208- .  571' 
V.  Wheeldon,  56  Vt.  344  .- 

-..-573'-,  582' 

V.  W'iider,  38  Vt.  678.592",  593- 
Wiley  D.  Norfolk  S.  R.  Co.  96  N. 

C.  408 -    234^ 

V.  Slater,  22  Barb.  506  ....    619^ 
Wilhelm  «.  Burleyson,  106  N.  C. 

381- 436'2 

Wilhite  V.  Speakman,  79  Ala.  400 

593',  596- 

Wilkinson  v.  Detroit  S.  &  S. 
Works,  73  Mich.  405.. 

10',  27-,  102%  104^ 

V.  Fairrie,   1   Hurlst.  &  C. 

633 - 19' 

V.  Fairrie,    32  L.  J.  N.  S. 
Exch.  73,  1  Hurl.  &  C. 

633 -       23' 

V.  Parrott,  32  Cal.  103  ....    621* 


TABLE    OF    CASES. 


XCVIl 


Willamette  Iron  Bridge    Co.   v. 

Hatch,  125  U.  S.  1,  31 

L.  ed.  629 464« 

Willard    v.    Calhoun,   70    Iowa, 

650 245' 

V.  Cambridge,  3  Allen,  574  475' 
V.  Forsvthe,  2  Mich.  N.  P. 

190 480' 

T.  Mathcsus,  7  Colo.  76 594^ 

Willey  V.  Hunter,  57  Vt.  479  ....   582' 
V.  Norfolk  S.  R.  Co.  96  N. 

C.  408 578\  5815  3 

William   Cox,  The,  9  Fed.  Rep. 

672 369' 

Wm.  H.  Briusfield,  The,  39  Fed. 

Reo.  215.... ---    569* 

William  Murtagh,  The,  17  Fed. 

Rep.  260. 369'^ 

Williams  v.  Blackwall,  2  Hurl.  & 

C.  33 533^  534 

V.  City  Electric  St.  R.  Co. 

41  Fed.  Rep.  556 25P 

V.  Dixon,  65  N.  C.  416 628^ 

V.  Great  Western  R.  Co.  L. 

R.  9  Exch.  157,  43  L. 

J.  N.  S.  Exch.  105...  2P 
T.  Ingram,  21  Tex.  300  ...  634^ 
t\  Jersey,  Craig  &  Ph.  91.  183« 
V.  Mich.    Cent.    R.    Co.    2 

Mich.  259 591^ 

T.  Moray,  74  Ind.  25 

61 8S  619%  620«,  6303 

V.  Moray,  74  Ind.  25,  29-.    604^ 
V.  Nelson,  23  Pick.  141.... 

263^  578«,  5815 

V.  Nelson,  23  Pick.  141, 147  571' 
V.  New  York  C.  R.  Co.  16 

N.  Y.  97 728 

v.  New  York  C.  R.  Co.  16 

N.  Y.  97,  18  Barb.  222  90' 
p.  Sa£ford,7Barb.  309....  124-* 
V.  The  William  Cox.  3  Fed. 

Rep.  645. 369' 

?7.  Tripp,  11  R.  I.  447 748 

V.  Turner,  7  Ga.  348 480^ 

V.  Water  Co.  134  Mass.  406  255'^ 
V.  Wilcox,  8  Ad.  &  El.  314, 

333 3773 

Williamsburg  Boom  Co.  v.  Smith, 

84  Kv.  372. 389',  556^ 

Williamson  v.  Barrett,  51  U.  S.  13 

How.  101,  14L.  ed.  68  637' 
V.  Brown,  15  N.  Y.  354,  362  ^2' 
V.  Carroll,  16  N.  J.  L.  2171  624^ 
V.  Lock's  Creek  Canal  Co. 

76  N.  C.  478 299' 

Willis  V.  Erie  Teleg.  &  Teleph. 

Co.  37  Minn.  347 ! 

96^  97S  251-^: 

V.  Legris,  45  111.  289. 600^  I 


Willoughby  v.  Horridge.  12  C.  B. 

742 151',  490» 

V.  Horridge,  12  C.  B.  742, 

749.."". 48^' 

V.  Horridge,  16  Eug.  L.  & 

Eq.  437. 486» 

V.  Lawrence,  116  111.  11,  3 

West.  Rep.  472  ..176%   183' 
Willson  V.  Black  Bird  Creek  Marsh 

Co.  27  U.S.  2  Pet.  245, 

7  L.  ed.  412 464' 

Willy  V.  MuUedy,  78  N.  Y.  310.. 

106'.  662'%  663» 

Wilmarth  v.  Woodcock,  58  Mich. 

482,    66  Mich.  331,   9 

West.  Rep.  895 476^ 

Wilson  V.  Atlanta,  60  Ga.  473  ...  332' 
».  Charlestown,8Allen,137  129' 
V.  Forbes,  2  Dev.  L  30...  514'* 
V.  Forbes,  2  Dev.  L.  30-36  380^ 
v.  Great  Southern  Teleph. 

&  Teleg.   Co.    41   La. 

Ann.  1041  ....7',  127%  153» 
V.  Hamilton,  4  Ohio  St.  722  488* 
V.  Hart,  2  Hem.  &  M.  551, 

L.  R.  1  Ch.  App.  463-   229 
T.  Lynn,  119  Mass.  174.89%  458^ 

V.  Marsh,  34  Vt.  352 311-* 

V.  New  Bedford,  108  Mass. 

261-257%  271,271',  288%  454'* 
V.  New  York,  1  Denio,  595 

305-'  %  321%  330* 

e.  New  York.  1  Denio,  598  317 
V.  New  York,  1  Denio,  601   330' 

V.  Sexon,  27  Iowa,  15 473 

V.  Shulkin,  6  Jones,  L.  375.  '488^ 

V.  State,  87  Ala.  117. 166» 

V.  Trafalgar  &  B.   C.   Gr. 

Road  Co.  83  Ind.  326, 

93  Ind.  2.S7 128* 

V.  Vaughn,  40  Iowa,  179..   427» 
Wilts  &  B.  Canal  Co.  v.  Swindon 

Waterworks  Co.  L.  R. 

9  Ch.  451 453» 

V.    Swindon     Waterworks 

Co.  L.  R.  9  Ch.  457  ..   441^ 
Wiltshire  v.  Sidford,  1   Man.  & 

Ry.  404 209*,  213 

Winbigler  v.  Los  Angeles,  45  Cal. 

36 341* 

Winchester  v.  Capron,  63  N.  H. 

605,  2  New  Eng.  Rep. 

543. 91* 

Windham   v.    Portland,  4  Mass. 

384,  389 341* 

Winn  V.  Abeles,  35  Kan.  85.199',  200' 
V.  Rutland,  52  Vt.  481.... 

291*%304%353» 

Winnetka   v.    Prouty,     107    111. 

225 580» 


G 


XCVlll 


TABLE    OF    CASES. 


Winnipiseoeree  Lake  Co. «.  Young, 

40  N.  H.  420- 4273 

Winnsboro  v.  Smart,  11  Rich.  L. 

551 152^ 

Winston  «.  Johnson,  43 Minn.  '6^.% 

.1503,  i(3q:3_  1612^  i(;gi_  1754 

Winter  «.  Brockweli,  8  East.  308   187- 
V.  Montgomery.  83  Ala.  589  99^  ^ 
Winterbottora  ».  Derby,  L.  R.  2 

Exch.  316 12(5*,  475^ 

Winthrop  'o.   Fairbanks,  41   Me. 

307 184= 

Wisconsin    River    Imp.    Co.    «. 

Lyons,  30  Wis.  61,  66.   405' 
Wisconsin  River  Log  Driv.  Asso. 
V.    Comstock  Lumber 
Co.  72  Wis.  464,  1   L. 

R.  A.  717 406',  558' 

Wiseman   «.    Lucksinger,  84  N. 

Y.  31 182',  1848 

Withers  «.  Purchase,  60  L.  T.  N. 
S.    819,  40  Alb.  L.  J. 

214 40P,  4109,  4603  461« 

Wixson  t.  Devine,  80  Cal.  385...   451^ 
Woburn  v.  Henshaw,  101   Mass. 

193.... 114' 

Wolf  V.  Kil  Patrick,  101  N.Y.  146, 

2   Cent.  Rep,  81 

44,  52',  61'«,  110 

«.  St.    Louis    Independent 
WaterCo.  lOCal.  541. 

.    432',  435« 

©.  St.    Louis    Independent 

Water  Co.  10  Cal.  544.   481* 
Wolfe  v.  Frost,  4  Sandf.  Ch.  72, 

7N.  Y.  Ch.  L.  ed.  1027  185^ 
V.  Frost,  4  Sandf.  Ch.  72, 

note 204' 

Wonson  v.  Wonsou,  14  Allen,  71    380' 
V.  Wonson,  14  Allen,  85..    360' 

Wood  ».  Appal,  63  Pa.  221 378^ 

v.  Independent  School  Dist. 

44  Iowa,  27 233,  29 

t).  La  Rue,  9  Mich.  158 616' 

v.  Rice,  24  Mich.  423 405' 

«.  SutcliflEe,  2   Sim.    N.  S. 
163,  8  Eng.  L.  &  Eq. 

217. 291^ 

•0.  Sutcliffe,  16  Jur.  75....    287'' 
«.  Truckee   Turnpike    Co. 

24  Cal.  474 485 

«.  Waud,  3  Exch.  748.... 

2872,  288*,  296' 

Woodbury  o.Parsh]ey,7  N.H.  287   182* 
«.  Robbins,  10  Cush.  520..    635' 
®.  Short,  17  Vt.  387... 397*.  3983 
Woodcock   ».  Calais,  66  Me.  234 

32P,  3523 

V.  Calais,  66  Me.  235 

3343,  335',  336',  3413 


Wooden  v.  Austin,  51  Barb.  9...   256* 
Woodin  «j.  Wentworth,  57  Mich. 

278 410',  545',   548« 

Woodman  v.  Pitman,  79  Me.  456 
4  New  Eng.  Rep.  699. 

260,  373S  376* 

».  Tufts,  9  N.  H.  88 55 

Woodraum  «.  Clay,  38  Fed.  Rep. 

897. 638^ 

Woods  «.  Lloyd  (Pa.)  16  Atl.  Rep. 

43 .■ 122^ 

Woodward  «.  Fox,  2  Vent.  188..   3999 
V.  Worcester,  121  Mass.  245 

2922,  3265,  45(j3 

Woodyear  «.  Schaefer,  57  I\Id.  1, 

40  Am.  Rep.  419.. 288',  291' 
Woodyer  v.  Hadden,  5  Taunt.  137  184* 
Woolever  v.  Stewart,  36  Ohio  St. 

146 499« 

Wooley  -D.  Grand  St.  &  N.  R.  Co. 

83  N.  Y.  121. 2582 

Woolf  V.  Beard,  8  Car.  &  P.  378.     35' 
"O.  Chalker,  31  Conn.  131.. 

587' 

616'.  6I93,  620«,  6253,  6813 
■0.  Chalker,  31  Conn.  130.. 

621',  6303 

Wool  man  v.  Garringer,  1   Mont. 

535 4458 

Woram  «.  Noble,  41  Hun,  398.. 58,  6I2 
Worcester  «.  Western  R.  Corp.  4 

Met.  564,  569 265* 

Worden    «.    New    Bedford,   131 

Mass.  23,  24 3453  ^ 

Works®.  Junction  R.  Co.  5  Mc- 
Lean, 425 79' 

Worley  v.  Columbia,  88  Mo.  106, 

4  West.  Rep.  342 8372  3 

Worrall  «.    Rhoads,    2     Whart. 

427 235= 

Worster  «.  Forty  Second  St.  &  G. 
St.  Ferry  Co.  50  N.  Y. 

203. 252* 

Worth  «.  Gilling,  L.  R.  2  C.  P.  1 

586»,  605' «.  606' 9,  609' 

?j.  Gilling,  L.  R.  2  C.  P.  8.   629' 
Worthen   v.  Love,  60   Vt.  285,  6 
New  Eng.  Rep.  655.. 

615*,  617*,  6303,  6311 

Worthington  «.  Parker,  11  Daly, 

545 - 256^ 

Wright  ».  Chicago  &  N.   W.  K. 

Co.  27  111.  App.  200..  655* 
©.  Compton,  53  Ind.  337..  39- 
«.  Freeman,   5   Har.   &  J. 

467,  478  578^ 

V.  Freeman,5Har.  &J.  477  5803 
V.  Maiden  R.  Co.  4  Allen, 

283 127* 

«.  Moore,  88  Ala.  598 262* 


TARLE    OF    CASES. 


XCIX 


Wrights. Mill vaney  (Wis.)  9  L.R. 

A.  807 539,  589' 

V.  Ramscot,  1  Saund.  83..   628' 

V.  Shorter,  56  Ga.  73 4S4' 

V.  Templet  on,  132  Mass.  49   127' 
Wyatt  V.  Harrison,  3  Barn.  &  Ad. 

871 193 

Wyckoff  V.  Queens  Co.  Ferry  Co. 

52  K  Y.  83 488«,  490- 

Wynkoop  v.  Burger,  12  Johns.  223  158' 


Yankee  Jim's  Union  Water  Co. 

V.  Crary,  25  Cal.  509..   44fi2 

Yates  «.  Judd,  18' Wis.  118 3773 

V.  Milwaukee,  77  U.  S.  10 

Wall.  497, 19  L.  ed.  984 

463^  55954^  563« 

V.  Warrenton,  84  Va.  337. 

70',  714 

Yeakle  ».  Nace,2  Wiiart.133.5803  *,  581^ 

Yerkesu.  Sabin,  97  Ind.  142 488' 

Yolo  Co.  V.  Sacramento,  36   Cal. 

193 792,  468^ 


Young  V. ,  1  Ld.  Rnvm.  725.  124* 

T.  Ilarvev,  16  Ind."  314.117,  59'^' 

V.  Ilichins,  6  Q.  B.  (i06...  500' 
V.  Kansas  Citv,27  Mo.  App. 

101 ". 807' 

«.  Leedon,  67  Pa.  351 302' 

V.  Wilson,  27  N.  Y.  351..  242' 


Zabriski  v.  Jersey  City  &  B.  R. 

Co.  13   N.  J.  Eq.  314.     76 

Zearing  v.  Raber,  74  IW.  409 184^ 

Zell  V.  First  Universalist  Soc.  119 

Pa.  390,  13  Cent.  Rep. 

148 

171  ^  174',  574«,  575\  579* 
Zigefoose  v.  Zigefoose,  69  Iowa, 

391 ..1768,  234-« 

Zoebisch  v.  Tarbell,  10  Allen,  385 

19',  24»,  25^  568* 

V.  Tarbell.lOAllen,  385.  87 

Am.  Dec.  603,  etseq., 

note 19' 

V.  Tarbell,  87  Am.  Dec. 666, 

note 28' 


IMPOSED    DUTIES,   PERSO:S^AL. 


PART  I. 

LAND,  DUTIES  RESPECTING  AND  RIGHTS  THEREIN. 


CHAPTER  I. 

ORIGIN   AND   NATURE   OF  IMPOSED   PERSONAL   DUTIES. 

Sec.  1.  Imposed  at  Common  Laiv  and  by  Statute. 

Sec.  2.   The  Permanence  and  Purpose  of  tlie  Common  Laio. 

•Sec.  3.  Absolute  Duties. 

Sectioi^  1.— Imposed  at  Coimnon  Law  and  hy 

Statute. 

ITpoii  each  person,  in  eyeiy  position  he  occupies,  peculiar  duties 
are  imposed,  each  demanding  its  discharge  with  an  em])hasis 
accentuated  or  modified  by  the  attendant  circumstances.  The 
individual,  independent  of  social  relations,  has  a  natural  right  in 
his  person  and  property.  Of  this  right  he  cannot  justly  be  de- 
prived without  his  consent.  He  is  said  to  be  free.  And  yet  this 
is  only  absolutely  true  in  so  far  as  he  is  able  to  bring  his  animal 
nature,  with  its  passions  and  appetites,  and  the  influence  of  his 
surroundings  upon  such  nature,  in  subjection  to  his  reason,  and 
his  sense  of  moral  duty  and  right. 

It  is  equally  clear  that,  as  a  member  of  society,  the  individual 
1 


2  IMPOSED   DUTIES,  PEKSONAL.  [Part  1. 

can  onlj  be  said  to  be  free  to  the  extent  that  every  other  mem- 
ber of  the  social  order  is  withheld  from  trespassing  against  his 
person  or  invading  his  right  of  property.  To  the  extent  that 
others  may  encroach  upon  his  rights,  his  liberty  is  restrained. 

By  the  law  of  nature  he  has  the  unquestioned  right  to  protect 
his  person  and  his  property.  If  necessary  he  may  exercise  this 
right  to  the  extent  of  restraining  the  personal  liberty  of  one  who 
attacks  his  rights,  or,  if  the  emergency  serve,  in  defense  of  his 
life  he  may  take  the  life  of  his  assailant.  Self-preservation  is 
fully  recognized  as  the  first  law  of  nature.  But  as  a  member 
of  a  community  it  would  be  impossible  to  attempt  the  personal 
maintenance  of  individual  rights,  and  the  eifort  would  be  destruc- 
tive of  all  organized  society.  Inasmuch  as  the  danger  to  his  right 
comes  from  members  of  the  community,  he  has  the  right  to  de- 
mand that  such  members  be  restrained  from  such  trespass,  and  he 
must  also  submit  himself  to  restraint. 

In  virtue  of  his  membership  of  society,  every  man  is  held  there- 
fore as  committing  his  natural  right  to  protect  his  ownership,  pos- 
session, control  and  disposal  of  property  to  the  care  of  the 
organized  community  of  which  he  forms  a  part.  He  intrusts 
this  community  with  the  exercise  of  his  individual  right  to  pro- 
tect his  property.  His  power  to  make  such  a  disposition  of  his 
individual  right  cannot  be  questioned. 

Equally  clear  is  his  power  to  transfer  the  care  of  his  personal 
safety,  with  his  right  to  personally  restrain  or  disable  those  who 
would  imperil  it.  The  organized  community,  thus  receiving  the 
individual  right  of  each  member,  is  clothed  with  the  surrendered 
individual  power  of  all  for  the  common  protection  of  property, 
liberty  and  life.  Each  of  these  is  rendered  secure  only  by  the 
restraint  of  each  member  of  the  community  from  doing  injury  ta 
another.  The  rules  imposing  these  restraints  upon  the  exercise 
of  one's  i-ights,  where  they  would  invade  the  right  of  another, 
have  crystallized  into  what  is  called  the  "common  law,"  in  which 
in  terms,  or  in  the  application  of  its  principles,  by  inference,  will 
be  found  the  duties  imposed  upon  each  member  of  the  connnunitj 
in  the  exercise  of  his  rights,  except  as  statutes  have  been  passed 
from  time  to  time,  declaratory  of,  or  imposing  duties  in  addition 
to,  those  arising  at  common  law. 


Chap,  i.]  PERMANENCE    AND    PURPOSE    OF    COMMON    LAW.  3 

Section"  '2.—TJie  Periuctnence  and  Purpose  of  the 
Common  Law. 

Tliis  common  law  is  a  system  of  principles,  always  in  livin^^,  if 
not  in  acting,  force.  It  is  therefore  nnchangeable.  It  cannot  be 
expanded  to  cover  new  conditions  or  circumstances,  nor  contracted 
to  permit  what  was  once  against  its  prohibitions  to  escape  its  con- 
demnation. The  princij^les  of  the  common  law  have  for  their 
purpose  the  preservation  of  social  order  and  of  private  rights. 
Precedents  serve  only  to  illustrate  the  application  of  certain  prin- 
ciples of  the  common  law  to  certain  existing  facts.  It  may  be 
true  that  changed  conditions  of  society  and  altered  circumstances 
may  thereafter  prevent  the  application  of  the  particular  principles 
to  the  same  state  of  facts  from  producing  the  same  conclusion. 
But  the  common  law  has  been  neither  expanded,  contracted  nor 
changed  ;  but  the  facts  which  formerly  tended  to  the  prejudice  of 
good  order  or  of  private  rights  do  not  now  have  this  effect.  A 
precedent  is  valuable  to  illustrate  a  principle,  but  it  is  not  itself  a 
principle,  nor  does  it  form  any  part  of  the  common  law.  The 
precedent  by  reason  of  changed  conditions  may  cease  to  illustrate 
the  principle,  and  at  that  instant  it  ceases  to  be  of  value.  But 
the  principle,  which  is  the  law,  cannot  perish  with  the  precedent, 
and  its  proper  application  to  the  changed  conditions  will  again 
establish  the  law  and  create  a  new  precedent.  Customs  and 
usages — which  are  but  examples  of  the  application  of  principles 
to  certain  supposed  conditions — are  modified  or  expanded,  as  the 
experience  of  mankind  proves  the  application  of  a  particular  prin- 
ciple to  facts  to  have  been  erroneous  or  imperfect ;  or  that  the 
supposed  conditions  did  not  exist,  or  did  not  tend  to  produce  the 
results  upon  the  public  or  upon  private  individuals  anticipated. 
Nature's  law  is  evolution — continuous  progressive  change  accord- 
ing to  certain  rules  and  by  means  of  resident  forces.  This  law, 
acting  in  human  progress,  makes  mind  one  of  its  factors,  and 
when,  by  the  use  of  reason,  a  line  of  conduct,  theretofore  regarded 
as  harmless,  is  discovered  to  be  prejudicial  to  the  public,  it  comes 
at  once  within  the  principles  of  the  common  law,  and  is  pro- 
hibited. 

This  unwritten  law,  as  distinguished  from  the  statutes,*  has,  at  va- 

^Lety  V.  McCartee,  31  U.  S.  6  Pet.  102,  8  L.  ed.  334. 


4  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

rious  stages  of  the  application  of  its  principles  to  existing  conditions 
of  society,  been  called  the  "  perfection  of  human  reason."  Its  pur- 
pose is  to  regulate  the  conduct  of  man  in  his  social  relations  and 
intercourse  with  his  fellows,  and  to  define  his  rights,  and  the  du- 
ties which  result  from  his  attempt  to  exercise  his  birthrights, 
when  and  where  they  may  trench  upon  the  privileges  of  another. 
The  common  law  rests  upon  principles  of  justice  and  recognizes 
present  existing  common  rights ;  for  courts  are  bound  by  such 
precedents  only  of  the  common  law  and  its  statutory  affinities  as 
concern  the  existing  conditions  and  circumstances.' 

Man  as  a  reasonable  being  must  submit  to  the  laws  of  nature. 
As  a  moral  being  he  must  obey  the  moral  law.  The  common  law 
is  adapted  to  the  general  regulation  of  the  line  of  conduct  of  in- 
dividuals as  reasonable  and  moral  members  of  society,  and  its 
principles,  if  accurately  attended  to,  will  be  found  to  all  point  to 
that  end. 

Section-  Z.— Absolute  Duties. 

Puffendorf  states,''  as  among  the  series  of  absolute  duties,  or  such 
as  oblige  all  men  antecedent  to  any  human  institutions,  as  not  only 
the  widest  of  all  in  its  extent,  but  comprehending  all  men  on  the 
bare  account  of  their  being  men,  the  duty  "  that  no  man  hurt  an- 
other, and  that  in  case  of  any  hurt  or  damage  done  by  him,  he  fail 
not  to  make  reparation." 

Looked  upon  purely  as  a  negative  absence  from  acting,  except 
as  it  restrains  passions,  he  treats  it  as  the  most  necessary  of  human 
duties,  inasmuch  as  the  life  of  society  cannot  possibly  be  main- 
tained without  it ;  "  for,  suppose  a  man  do  me  no  good,  and  not  so 
much  as  to  transact  with  me  in  the  common  offices  of  life,  yet  pro- 
vided he  do  me  no  harm,  I  can  live  with  him  under  some  tolerable 
comfort  and  quiet.  ...  It  is  beyond  doubt  that  he  who  offers  dam- 
age to  another  out  of  an  evil  design  is  bound  to  make  reparation, 
and  that  to  the  full  value  of  the  wrong  and  of  all  the  consequences 
flowing  from  it ;  but  those  likewise  stand  responsible  who  commit 
an  act  of  trespass,  though  not  designedly,  yet  by  such  a  piece  of  neg- 
lect as  they  might  easily  have  avoided.  For  it  is  no  inconsiderable 
part  of  social  duty  to  manage  our  conversation  with  such  caution 

KState  V.  Williams  (Del.  Jan.  15,  1890),  18  Atl.  Rep.  949. 
^Puffendorf,  Law  of  Nature,  bk.  III.  chap.  1,  §§  1,  6. 


Chap.  I.]  ABSOLUTE    DUTIES,  5 

and  prudence  that  it  do  not  become  terrible  or  pernicious  to  others, 
and  men  under  some  circumstances  and  relations  are  obliged  to 
more  exact  and  watchful  diligence.  Indeed,  the  slightest  default 
on  this  point  is  sufficient  to  impose  a  necessity  of  reparation, 
unless  under  one  of  these  exceptions  :  either  that  the  nature  of  the 
business  was  such  as  disdained  a  care  more  nice  and  scrupulous ; 
or  that  the  party  who  receives  the  wrong  is  no  less  in  fault  than, 
he  who  gives  it ;  or,  lastly,  that  some  perturbation  of  mind  in  the 
person,  or  some  extraordinary  circumstances  in  the  affair,  leaves 
no  room  for  accurate  and  considerate  circumspection, as"  (impul- 
sive action  in  imminent  peril")  "  suppose  a  soldier  in  the  heat 
of  an  engagement  should  hurt  his  next  man  with  his  arms  whilst 
he  brandishes  and  employs  them  against  the  enemy." 

In  illustration  of  the  first  exception,  the  rule  may  be  referred 
to,  that  in  emergencies,  when  human  life  is  in  jeopardy,  and  a 
chance,  even  if  it  be  a  slight  one,  presents  itself  to  save  that  life, 
great  risks  may  be  incurred,  and  the  law  in  favor  of  human  life 
and  for  the  encouragement  of  human  heroism  refuses  to  put  the 
brand  of  negligence  upon  a  personal  sacrifice  for  such  a  purpose.* 
When  a  young  girl  steps  upon  a  railroad  track  in  front  of  a 
train,  which  is  nearly  half  a  mile  away,  to  compel  small  children, 
playing  thereon,  to  get  out  of  the  way  of  the  train,  she  is  not 
guilty  of  negligence  in  so  doing.^  Certainly  no  action  could  be  main- 
tained on  behalf  of  the  rescued  children,  whose  improper  position 
imperiled  them,  on  the  ground  that  the  removal  was  accomjDlished 
with  less  gentle  consideration  than  might  have  been  expected  under 
other  circumstances.  And,  in  further  illustration  of  the  third  ex- 
ception, it  is  clear  that  one  whose  j)erson  obstructed  an  effort  to 
save  life  or  property  could  not  recover  for  the  use  of  reasonable 
violence  in  removing  him.  The  same  general  principle  justifies 
the  destruction  of  buildings  to  prevent  the  spread  of  fire\ 

^SouthWestVa.  Imp.  Co.  v.  S?nUh(Va..  Aug.  23, 1888),  7  S.  E.  Rep.  365. 

^LinneJian  v.  Lampson,  126  Mass.  508;  Clark  v.  Farmers  Shoe  &  G.  Co. 
16  Mo.  App.  463;  Eckert  v.  Long  Island  R.  Co.  43  N.  Y.  503;  Peyton  v. 
Texas  &  P.  R.  Co.  41  La.  Ann.  861;  Pigott  v.  Lilly,  55  Mich.  150;  Dona- 
hoe  V.  Wabash,  St.  L.  &  P.  R.  Co.  83  Mo.  560;  Cdrroll  v.  Minne.'o'jt  Val- 
ley R.  Go.  14  Minn.  57;  Pennsylvania  Co.  v.  Roney,  89  Ind.  453;  Central 
R.  Co.  V.  Crosby,  74  Ga.  737. 

^Spooner  v.  Delaware,  L.  &  W.  R.  Go.  115  N.  Y.  22. 

^Surroco  v.  Oeary,  3  Cal.  69. 


6  IMPOSED   DUTIES,  PERSONAL.  [Fart    I. 

At  the  common  law  everyone  had  the  right  to  destroy  real  and 
personal  property,  in  cases  of  actual  necessity,  to  prevent  the 
spreading  of  a  fire,  and  there  was  no  responsibility  on  the  part  of 
such  destroyers  and  no  remedy  for  the  owner.  In  the  Case 
of  the  Prerogative^  12  Coke,  13,  it  is  said:  "For  the  Com- 
monwealth a  man  shall  suffer  damages ;  as,  for  saving  a  city  or 
town  a  house  shall  be  plucked  down  if  the  next  one  be  on  fire ; 
and  a  thing  for  the  Commonwealth  every  man  may  do  without 
being  liable  to  an  action."  There  are  many  other  cases  besides 
that  of  fire,  some  of  them  involving  the  destruction  of  life  itself, 
where  the  same  rule  is  applied.*  "  The  rights  of  necessity  are  a 
part  of  the  law."  In  these  cases  the  common  law  adopts  the  prin- 
ciples of  the  natural  law  and  finds  the  right  and  the  justification 
in  the  same  imperative  necessity.' 

It  has  also  been  said  that  the  act  is  not  that  of  a  sovereign  ex- 
ercising the  right  of  eminent  domain,  but  an  act  of  private  neces- 
sity, done  for  private  advantage,,  like  that  which  authorizes  the 
appropriation  of  a  plank  by  one,  which  will  not  sustain  two  in  the 
water.*  Upon  the  same  principle  goods  may  be  thrown  over  to 
save  the  vessel. 

^Res-publica  v.  Sparhmck,  1  U.  S.  1  Dall.  357,  362,  1  L.  ed.  174,  176. 
See  also  Mouse's  Case,  12  Coke,  63;  15  Vin.  Abr.  title  Necessity,  A, 
§  8;  British  Cast  Plate  Mfrs.  Go.  v.  Meredeth,  4  T.  R.  794;  Am.  Print 
Works  V.  Lawrence,  21  N.  J.  L.  248,  23  N.  J.  L.  590;  Stone  v.  New  York, 
25  AVend.  173;  Russell  v.  New  York,  2  Deiiio,  461. 

"Burlam.  145,  §g  6,  159,  chap.  5,  §§  24-29;  Pufiendorf,  bk.  II.  chap.  6; 
Bowditch  V.  'Boston,  101  U.  S.  16,  25  L.  ed.  980. 

^Surroco  v.  Oeary,  3  Cal.  69;  Respuhlica  v.  Sparhawk,  1  U.  S.  1  Dall. 
359,  1  L.  ed.  175;  Am.  Print  Works  v.  Lawrence,  21  N.  J.  L.  257;  New 
York  V.  Lord,  17  Wend.  290,  18  Wend.  125;  Stone  v.  New  York,  25 
Wend.  174. 


CHAPTER  II. 

NEGLIGENCE  IN  THE  EXERCISE  OF  RIGHTS. 

Sec.  4.    Duties  Attendant  upon  the  Possession  of  Eights  and  the 
Ownership  of  Property. 

a.  Nuisances. 

b.  Intention  to  Cause  Injury. 

c.  Proof  of  Intention  to  Injure  not  Always  Required. 

d.  Intention  Sometimes  Essential  to  he  Shown. 

e.  Placing  Spring  Guns  or  Traps  or  Keeping  a  Ferocious 

Animal  upon  One's  Land. 

Section  4. — Duties  Attendant  upon  the  Possession 
of  Rights  and  the  Ownership  of  I^'operty. 

The  principle  of  sic  utere  tuo  ut  alienum  non  Icedas^  stated 
more  fully,  runs  thus :  '•'•  Prohibiter  ne  quis  facit  in  suo,  quod 
nocere  possit  in  alieno,  et  sic  utere  tuo  ut  alienum,  non  IcedasP 
This  principle  is  necessarily  a  limitation  of  the  use  a  man  may 
make  of  his  own  property ;  under  it  he  is  not  to  make  any  use  he 
pleases  of  it,  but  he  is  so  only  to  use  it  as  not  in  the  unreasonable 
use  to  injure  another.  Therefore  a  landowner  cannot  perform 
any  work  on  his  land  which  may  have  the  effect  of  depriving  his 
neighbor  of  the  enjoyment  of  his  own  land,  or  which  may  dam- 
age the  latter.' 

If  one  has  on  his  own  premises  that  which  is  dangerous,  or  a 
substance  (whether  above  or  under  the  ground)  that  he  is  con- 
stantly using  which  is  liable  to  escape  and  injure  his  neighbor,  or 
that  which  his  neighbor  has  the  right  to  use,  it  has  been  held  that 
he  must  answer  for  the  consequences." 

Although  an  upper  riparian  proprietor  cannot  be  required  to  hold 
back  water  for  the  benefit  of  the  owners  below  him,  yet  he  cannot 
unreasonably  interfere  with  the  natural  flow  of  the  stream,  and 
send  down  a  great  deal  more  than  the  usual  quantity  at  times, 

'^Wihonv.  Great  SoutJiern  TelepJi.  &  Teleg.  Co.  41  La.  Ann.  1041, 
^Kinnaird  v.  Standard  Oil  Co.  (Ky.    Jan.  25,  1890)  7  L.  R.  A.  451;    Ot- 
tawa Oas-Light  C.  Co.  v.  Oraham,  28  111.  74;  Ballard  v.  Tomlinson,  L.  R. 
29  Ch.  Div.  115;  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330. 


8  IMPOSED    DUTIES,  PERSONAL.  [Part  I. 

and  by  so  doing  leave  none  for  a  long  time  afterwards  to  maintain 
the  stream  in  its  usual  condition.' 

Pollution  of  the  waters,  and  injury  to  the  flow  of  the  current, 
of  a  creek  by  discharging  into  it  the  manure  and  offal  from  ex- 
tensive cattle-feeding  barns,  in  such  manner  and  degree  as  to 
injure  the  stream  for  husbandry,  and  destroy  it  for  watering  live- 
stock on  adjacent  premises,  will  be  restrained  by  injunction,  al- 
though the  complainant  might  be  able  to  supply  water  for  his 
cattle  from  an  independent  source  at  a  comparatively  small  cost.' 

Altliough  one  may  appropriate  all  the  underground  water  in 
his  soil,  he  has  no  right  to  poison  it,  however  innocently,  or  to 
contaminate  it,  so  that  when  it  reaches  his  neighbor's  land  it  will 
be  unfit  for  use  either  by  man  or  beast, ^ 

Every  citizen  holds  his  property  subject  to  the  implied  obliga- 
tion that  he  will  use  it  in  such  way  as  not  to  prevent  others  from 
enjoying  the  reasonable  use  of  their  property.*  It  is  the  duty 
of  every  man  in  exercising  any  of  his  rights  to  consider  how 
they  will  affect  others.  He  must  so  exercise  them  as  not  un- 
necessarily to  injure  another  in  the  enjoyment  of  his  rights 
or  property.  An  individual  in  the  exercise  of  his  absolute 
rights,  if  it  may  be  reasonably  apprehended  that  he  may  endanger 
the  safety  of  others  in  the  enjoyment  of  their  rights,  must  exer- 
cise them   with  a  due  regard  for  the  safety  of  such  others." 

So  the  owner  of  a  lot  abutting  on  a  public  street  in  a  city  has 
no  right  to  erect  a  building;  on  it  with  a  roof  so  constructed  that 
ice  and  snow  collecting  on  it  will  naturally  and  probably  fall  upon 
the  sidew^alk  below,  thereby  exposing  foot  passengers  to  bodily 
injury ;  and  if  he  does  so  construct  it,  he  is  liable,  without  other 

1  Whitney  v.  Wlieeler  Cotton  Mills  (Mass.  May  9,  1890)  7  L.  R.  A.  613. 

^Bai^ton  V.  Union  Cattle  Co.  (Neb.  Dec.  31,  1889)  7  L.  R.  A.  457.  See 
Chapman  v.  Rochester,  110  N.Y.  273,  1  L.  R.  A.  296,  and  note;  Ferguson 
V.  Firmenich  Mfg.  Co.  77  Iowa,  576;  Oardner  v.  Newburgh,  2  Johns. 
Ch.  162,  1  N.  Y.  Ch.  L.  ed.  382;  Holsman  v.  Boiling  Spring  Bleaching  Co. 
14  N.  J.  Eq.  335;  Baltimore  v.  Warren  Mfg.  Co.  59  Md.  96;  Richmond 
Mfg.  Co.  V.  Atlantic  De  Laiiie  Co.  10  R.  I.  106. 

^Einnaird  v.  Standard  Oil  Co.  (Ky.  Jan.  25,  1890)  7  L.  R.  A.  451;  Bal- 
lard V.  Tomlinson,  L.  R.  29  Ch.  Div.  115;  Ottawa  Gas-Light  C.  Co.  v. 
Graham,  28  111.  74;  Pottstoicn  Gas  Co.  v.  Murphy,  39  Pa.  257;  Columbus 
Gas  Co.  V.  Freeland,  12  Ohio  St.  392;  Hodgkinson  v.  Ennor,  4  Best  &  S. 
229;  Turner  v.  Mirjield,  34  Beav.  390. 

estate  V.  Yopp,  97  N.  C.  477. 

^Rupard  v.  Chesapeake  &  0.  R.  Co.  (Ky.  Feb.  21,  1890)  7  L.  R.  A.  816. 


Chap.  II.]  NUISANCES.  9" 

proof  of  negligence,  to  a  person  injured  by  tlie  falling  ice  or  snow 
while  traveling  on  the  sidewalk  with  dne  care.' 

It  is  the  duty  of  the  owner  of  a  building  to  keep  it  in  such  safe 
condition  that  his  neighbor  or  travelers  on  the  highway  shall  not 
suffer  injury.'  TJie  same  rule  requires  care  both  in  the  original 
construction  and  maintenance,  that  the  building  may  not  fall  upon 
the  adjoining  property.'  But  neither  the  Legislature  nor  a  munic- 
ipal corporation  by  its  authority  can  declare  that  use  a  nuisance 
.which  is  not  such  in  fact.'' 

The  building  of  a  private  residence  on  one's  land  cannot  be  de- 
clared a  nuisance  because  it  may  have  a  tendency  to  depreciate 
the  value  of  the  adjoining  property  by  shutting  out  the  sea,  gulf 
or  river  breeze  and  obstructing  the  view  of  the  sea  or  water. 
Where  the  use  of  land  furnishes  the  test  for  the  determination  of 
the  constitutionality  of  a  law  prohibiting  it  as  a  nuisance,  the  Leg- 
islature may  not  conclusively  determine  the  effect  to  be  harmful. 
This  is  a  matter  for  judicial  determination.* 

It  may  be  said  generally  that  a  man  has  a  right  to  cultivate  or 
improve  his  land  in  the  usual  and  reasonable  way,  as  well  upon 
the  hillside  as  in  the  plain,  and  he  cannot  be  restrained  from  doing^ 
so  because  a  mill  pond  or  other  body  of  water  below  may  be  in- 
jured by  the  washing  down  of  the  soil.* 

a.  JVuisances. 

If,  however,  the  use  to  which  the  property  be  put  does  in  point 
of  fact  constitute  a  nuisance,  the  liability  for  maintaining  it  to  the- 
injury  of  adjoining  owners  does  not  depend  on  the  question 
whether  such  use  by  the  owner  is  reasonable  or  otherwise,  but  on 
the  question  of  whether  he  injures  his  neighbor.^     Indeed,  every 

^Hannem  v.  Pence,  40  Minn.  127. 

^Ehron  v.  Brock,  144  Mass.   516,  4  New  Eng.  Rep.  424;  Shipley  v.  Fiftu 

AssoAQQ  Mass.  194;  Belloics  v.  Sackett,  15  Barb.  96. 
^ScJiell  V.  Second  Nat.  Bank,  14  Minn.  43;  Kajypes  v.  Appcl,  14111.  App.  170; 

Qorham  v.  Gross,  125  Mass.  233. 

*Des  Plaines  v.  Payer,  123  111.  348,  12  West.  Rep.  760. 

^Quiniini  v.  Bay  St.  Louis,  64  Miss.  483;  Garrett  v.  Janes,  65  Md.  260,  7 
Cent.  Rep.  403. 

^Middlesex  Co.  v.  McCue,  149  Mass.  103. 

''Reinhardt  v.  Mentasti,  L.  R.  42  Ch.  Div.  685,  40  Alb.  L.  J.  490. 


10  IMPOSED    DUTIES,  PERSONAL.  [Part  I. 

-case  of  (wlia!  is  ordinarily  called)  nuisance  which  is  injurious  to 
another  in  the  enjoyment  of  his  property,  whether  by  setting  up 
a  noxious  trade,  or  a  noisy  occupation,  is  a  nuisance,  fully  within 
this  rule  restricting  the  use  of  property  and  governed  by  it. 

That  is  a  nuisance  which  annoys  and  disturbs  one  in  the  posses- 
sion of  his  property,  rendering  its  ordinary  use  or  occupation 
physically  uncomfortable  to  him.^ 

It  is  an  actionable  nuisance  to  build  one's  chimney  so  low  as  to 
•cause  the  smoke  to  enter  his  neighbor's  house." 

The  placing  of  the  poles  of  a  fence  on  the  outer  edge  of  a  high- 
way will  render  the  party  guilty  of  a  nuisance.^  The  Mass- 
achusetts Acts  of  1887,  chap.  348,  making  a  private  nuisance 
of  any  fence  unnecessarily  exceeding  6  feet  in  height,  mair- 
tained  for  the  purpose  of  annoying  owners  of  adjoining  prop- 
erty, is  held  to  be  within  the  limits  of  the  police  power  and  is 
constitutional  with  respect  to  fences  erected  either  before  or  arter 
its  passage.* 

A  powder  magazine  in  which  is  constantly  kept  stored  thou- 
sands of  pounds  of  powder,  situated  between  300  and  400  feet 
from  a  private  residence,  uninclosed  and  surrounded  by  a  growth 
of  weeds  and  grass,  and  which  is  a  constant  source  of  alarm  and 
causes  a  great  depreciation  in  value  of  the  resident's  property, — is 
a  nuisance."  Indeed,  the  keeping  of  gunpowder  in  places  where  it 
will  be  liable,  in  case  of  explosion,  to  injure  a  house  in  close  proximi- 
ty, constitutes  a  private  nuisance,  and  the  person  so  keeping  it  is  lia- 
ble for  injury  resulting  from  such  explosions,  without  regard  to 
the  question  whether  he  was  chargeable  with  negligence." 

The  exercise  of  reasonable  care  in  the  creation  or  maintenance 
of  a  nuisance  can  never  be  an  absolute  defense  to  an  action  for  an 
injury  occasioned  thereby.^ 

In  MoKeon  v.  See,  4  Eobt.  449,  it  was  held  that  the  defendant 

1  ^Baltimore  &  P.  R.  Go.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  27  L.  ed. 

739. 
^Reg.  V.  United  Kingdom  E.  Tel.  Co.  31  L.  J.  N.  S.  M.   C.  167;  Davis  v.  New 

York,  14  N.  Y.  524. 
*Bideout  v.  Knox,  148  Mass.  368.  2  L.  R.  A.  81. 
^Comminge  v.  Stevenson,  76  Tex.  642. 
^Laflin-Rand  Poioder  Co.  v.    Tearney,  131  111.  322,  7  L.  R.  A.  262;  Heeg  v. 

Licht,  80  N.  Y.  579;  Dilworth's  App.  91  Pa.  247, 
''Wilkinson  v.  Detroit  S.  &  S.  Works,  73  Mich.  405. 


Chap.  II.]  INTENTION   TO   CAUSE   INJURY.  11 

had  no  right  to  operate  a  steam-engine  and  other  machinery  upon 
his  premises,  so  as  to  cause  the  vibration  and  shaking  of  pLiintiffs 
adjoining  buildings  to  such  an  extent  as  to  endanger  and  injure 
them.* 

A  license  given  by  a  county  board  of  health  "  to  manufacture 
fertilizers  and  materials"  will  not  authorize  the  licensee  to  create 
noisome  odors  and  thereby  corrupt  the  air,  to  the  inconvenience 
of  the  public." 

The  supervisors  cannot  by  license  authorize  a  railroad  company 
to  construct  or  maintain  a  nuisance  in  the  public  streets^  even 
though  the  damages  are  inappreciable.* 

Where  the  prosecution  of  a  business  in  itself  lawful,  in  the 
neighborhood  of  a  dwelling-house,  renders  the  occupation  of  it 
materially  uncomfortable  by  reason  of  noises  alone,  the  carrying 
on  of  such  business,  while  it  produces  such  results,  will  be  re- 
strained by  a  court  of  equity.* 

A  skating  rink  erected  within  a  short  distance  of  a  dwelling, 
when  the  noise  from  the  skating  and  attending  it  is  of  such  a 
character  as  to  materially  interfere  with  the  comfort  and  enjoy- 
ment of  the  inmates  of  such  dwelling,  is  properly  enjoined  by  a 
court  of  equity.' 

b.  Intention  to  Cause  Injury. 

Intention  to  cause  the  injury  is  not,  in  all  these  cases,  a  control- 
ling element,  although  in  many  cases  of  the  kind  it  may  be  essen- 
tial to  prove  it  in  order  to  establish  a  liability.  But  express  in- 
tention may  make  the  act  in  some  cases  unlawful  in  the  beginning; 
so  that  where  the  injury  intended  follows,  a  right  of  action  ac- 
crues, when,  if  there  had  been  no  such  intention,  it  might  be 
doubtful  whether  the  party  would  have  any  ground  of  action.' 

At  common  law  a  man  has  a  right  to  build  a  fence  on  his  own 

'See  also  Fish  v.  Dodge,  4  Denio,  312. 

^Garrett  v.  State,  49  N.  J.  L.  94,  5  Cent.  Rep.  337. 

^Sullivan  v.  lioyer,  72  Cal.  248. 

^Humphrey  v.  Irvin  (Pa.    Oct.  4,  1886),  4  Cent.  Rep.  687.     See  Adams  v. 

Chicago,  B.  <fc  N.  E.  Co.  39  Minn.  286,  1  L.  R.  A.  493,  note. 
» ^Stiyder  v.  Cabell,  29  W.  Va.  48. 
iChesley  v.'  King,   74  Me.   164;  Burke  v.  Smith,  69  Mich.  380,  15   West. 

Rep.  371. 


12  LVIPOSED    DUTIES,  PEKSONAL,  [Part  I. 

land  as  high  as  he  pleases,  however  much  it  may  obstruct  his  neigh- 
bor's light  and  air.  And  the  limit  up  to  which  a  man  may  impair 
his  neighbor's  enjoyment  of  his  estate  by  the  mode  of  using  his 
own  is  fixed  by  external  standards  only/  But  it  is  plain  that  the 
right  to  use  one's  property  for  the  sole  purpose  of  injuring  others 
is  not  one  of  the  immediate  rights  of  ownership  ;  it  is  not  a  right 
for  the  sake  of  which  property  is  recognized  by  the  law,  but  is 
only  a  more  or  less  necessary  incident  of  rights  which  are  estab- 
lished for  very  different  ends.  It  has  been  thought  by  respectable 
authorities  that  even  at  common  law  the  extent  of  a  man's  rights 
might  depend  upon  the  motive  with  which  he  acted." 

In  speaking  of  personal  rights,  it  is  said  :  "  These  rights  should 
not  be  exercised  from  mere  malice.'"  In  Hideout  v.  Knox, 
148  Mass.  368,  2  L.  K.  A.  81,  it  was  decided  that  chapter 
348  of  the  Acts  of  Massachusetts  of  1887,  making  a  private 
nuisance  of  any  fence  unnecessarily  exceeding  six  feet  in 
height,  maintained  for  the  purpose  of  annoying  owners  of 
adjoining  property,  is  within  the  limits  of  the  police  power  and  is 
constitutional  in  respect  to  fences  erected  either  before  or  after 
its  passage.  But  not  accepting  this  limitation  as  existing  at  com- 
mon law  nor  as  one  within  the  power  of  the  Legislature  to  impose 
upon  the  owner  of  property,  it  was  insisted  in  argument  in  Ride- 
out  V.  Knox,  supra,  that  it  does  not  follow  that  the  rule  is  the 
same  for  a  boundary  fence  unnecessarily  built  more  than  six  feet 
high.  It  may  be  said  that  the  difference  is  only  one  of  degree. 
The  answer  was  that  most  differences  are,  when  clearly  analyzed. 
At  any  rate,  difference  of  degree  is  one  of  the  distinctions  by 
which  the  right  of  the  Legislature  to  exercise  the  police  power  is 
determined.  Some  small  limitations  of  previously  existing  rights 
incident  to  property  may  be  imposed  for  the  sake  of  preventing  a 

^Walker  v.  Cronin,  107  Mass.  555,  564;  dial  field  v.  Wilson,  28  Vt.  49; 
PhelpsY.  Nowlen,  72  N.Y.  39;  Fmzier  v.  Broton,  12  Ohio  St.  294;  Martin, 
B  in  Rawniron  v.  Taylor,  11  Exch.  369,  378,  384.  See  Benjamin  v. 
WJieeler,  8  Gray,  409,  413. 

^Greenleaf  v.  Francis,  18  Pick.  117,  119,  122.  See  Carson  v.  Western 
R.  Go.  8  Gray,  423,  424;  Roath  v.  Driseoll,  20  Conn.  533,  544;  Wlieatley 
V.  Baucjli,  25  Pa.  528;  Swett  v.  Outts,  50  N.  H.  439,  447;  Rideout  v.  Knox, 
148  Mass.  368,  2  L.  R.  A.  81;  Burroughs  v.  Satterlee,  67  Iowa,  396; 
Chesley  v.  King,  74  Me.  164. 

^Oreenleaf  v.  Francis,  18  Pick.  117.  See  also  Dellii  v.  Toumans,  50  Barb. 
316-320;  Panton  v.  Holland,  17  Johns.  92-98;  Haldeman  v.  BrucJchart,  45 
Pa.  514;  Cooley,  Torts,  596;  Washb.  Easem.  (3d  ed.)  487,  488. 


Chap.  II.]  INTENTION    TO    CAUSE    INJURY.  13 

manifest  evil ;  larger  ones  could  not  be  except  by  the  exercise  of 
the  right  of  eminent  domain.'  The  Statute  is  said  to  be  confined 
to  fences  and  structures  in  the  nature  of  fences,  and  to  such  fences 
only  as  unnecessarily  exceed  six  feet  in  height.  It  is  hard  to  im- 
agine a  more  insignificant  curtailment  of  the  rights  of  property. 
Even  the  right  to  build  a  fence  above  six  feet  is  not  denied  when 
any  convenience  of  the  owner  would  be  served  by  building  higher. 
It  was  thought  at  least  doubtful  whether  the  Act  applied  to 
fences  not  substantially  adjoining  the  injured  party's  land.  The 
fences  must  be  "maliciously  erected  or  maintained  for  the  pur- 
pose of  annoying"  adjoining  owners  or  occupiers.  This  language 
the  court  held  clearly  expresses  that  there  must  be  an  actual  ma- 
levolent motive,  as  distinguished  from  merely  technical  malice. 
The  meaning  is  plainer  than  in  the  case  of  statutes  concerning 
malicious  mischief."  It  is  not  enough,  it  was  said,  to  satisfy  the 
words  of  the  Act  that  malevolence  was  one  of  the  motives,  but 
malevolence  must  be  the  dominant  motive,  a  motive  without 
which  the  fence  would  not  have  been  built  or  maintained.  A 
man  cannot  be  punished  for  malevolently  maintaining  a  fence 
for  the  purpose  of  annoying  his  neighbor,  merely  because  he 
feels  pleasure  at  the  thought  he  is  giving  annoyance,  if  that 
pleasure  alone  would  not  induce  him  to  maintain  it,  or  if  he 
would  maintain  it  for  other  reasons  even  if  that  pleasure  should 
be  denied  him.  If  the  height  above  six  feet  is  really  necessary 
for  any  reason  there  is  no  liability,  whatever  the  motives  of 
the  owner  in  erecting  it.  If  he  thinks  it  necessary  and  acts  on 
his  opinion,  he  is  not  liable  because  he  also  acts  malevolently. 
The  Statute  thus  construed  was  decided  within  the  limits  of  the 
police  power  and  constitutional,  so  far  as  it  regulates  the  subse- 
quent erection  of  fences.  To  that  extent  it  simply  restrains  a 
noxious  use  of  the  owner's  premises ;  and  although  the  use  is  not 
directly  injurious  to  the  public  at  large,  there  is  a  public  interest 
to  restrain  this  kind  of  aggressive  annoyance  of  one  neighbor  by 
another,  and  to  mark  a  delinite  limit  beyond  which  it  is  not  law- 
ful to  go.* 

^Sawyer  v.  Bavis,  136  Mass.  239,  243. 

-Com.  Y.Walden,  3  Cush.  558;  Com.  v.  Ooodioin,  122  Mass.  19,  35. 

^Com.  V.  Alger,  7  Cush.  53,  86,  96;  Watertown  v.  Mayo,  109  IMass.  315; 
Train  v.  Boston  Dmnfectinrj  Co.  144  Mass.  523,  4  New  Eng.  Rep.  437. 
See  also  Talbot  v.  Hudson,  16  Gray,  417,  423. 


14  IMPOSED    DUTIES,  PERSONAL.  [Fart  I. 

The  noxious  trade,  the  noisy  occupation  or  the  erection  of  a 
building,  considered  abstractly  from  the  rights  of  others,  is  per- 
fectly innocent ;  but  if  another  has  an  existing  right,  and  is,  in 
consequence,  injured  by  it  or  prevented  from  the  reasonable  en- 
joyment of  such  right,  he  sustains  an  actionable  injury.  Every 
person  is  protected  by  this  rule,  who  has  an  equal  right  with  him 
who  does  the  act,  and  who  is  injured  without  his  default  in  the 
exercise  of  that  riglit.^ 

c.  Proof  of  Intention  to  Injure  not  Always 
Required. 

In  the  case  of  the  nuisances  referred  to,  where  the  intention  to 
do  an  injury  is  not  an  essential  ingredient  in  an  action,  the  act, 
and  the  injury  to  the  right,  are  the  essential  ingredients.  In  cases 
where  the  intention  is  necessary,  the  law  will  supply  it.  In  Pa7'k- 
hiirst  V.  Foster^  1  Ld.  Raym.  480,  the  action  was  against  the  de- 
fendant, a  constable,  for  illegally  billeting  a  dragoon  on  the 
plaintiff,  and  forcing  the  plaintiff  to  find  meat,  drink  and  lodging 
for  him.  The  special  verdict  found  that  plaintiff  kept  a  house  at 
Epsom,  for  those  who  came  there  for  the  air,  and  to  drink  the 
waters  there,  and  sold  small  beer  to  his  lodgers,  and  that  defend- 
ant had  billeted  a  dragoon  there,  and  that  the  dragoon  forced 
plaintiff  to  find  meat,  etc.  It  was  objected  for  the  defendant  that 
there  was  a  variance  between  the  fact  in  the  verdict  and  in  the 
declaration.  Lord  Holt  said :  "  At  common  law,  if  a  man  does 
an  unlawful  act,  he  shall  be  answerable  for  the  consequences  of  it, 
especially  where,  as  in  this  case,  the  act  was  done  with  intent  that 
consequential  damages  should  ensue."  So  if  one  on  the  public  street 
erect  a  building  with  a  roof  that  will  naturally  cast  snow  and  ice 
upon  travelers,  no  proof  of  intention  or  of  negligence  is  required." 

Where  the  act  must  necessarily  cause  continuous  and  direct 
injury,  the  law  will  necessarily  supply  the  intention.  In  Losee  v. 
Buchanan,  51  N.  T.  476,  referring  to  the  decision  in  Selden  v. 
Delaware  (&  H.  Canal  Co.,  24  Barb.  3(32,  declaring  the  canal  com- 

^Shuely  v.  Cedar  Rapids,  I.  F.  &  JSf.  B.  Co.  74  Iowa,  169;  Pensacola  Gas 
Co  V  Pebley  (Fla.  Feb.  5,  1889)  5  So.  Rep.  593;  Chapman  v.  Rochester, 
110  N.  Y.  273,  1  L.  R.  A.  298.  13  Cent.  Rep.  426. 

^Hannem  v.  Pence,  40  Minn.  127. 


Chap.   IL]       INTENTION    SOMETIMES    ESSENTIAL    TO    BE    SHOWN.  15 

pany  liable  for  inundating  adjoining  lands,  the  court  says  that  "  if 
the  defendant  did  not  have  the  protection  of  the  law  for  the  dam- 
ages which  it  occasioned,  then  it  was  clearly  lial)le.  Its  acts  were 
necessarily  and  directly  injurious  to  the  plaintiff.  It  kept  the 
water  in  its  canal  when  it  knew  the  necessary  consequence  was  to 
flood  the  plaintiff's  premises.  The  damage  to  plaintiff  was  not 
accidental,  but  continuous,  direct  and  necessary.  In  such  a  case, 
the  wrong-doer  must  be  held  to  have  intended  the  consequences  of 
his  act,  and  must  be  treated  like  one  keeping  upon  his  premises  a 
nuisance  doing  constant  damage  to  his  neighbor's  property." 

So  one  who  lets  his  house  knowing  it  is  infected  without  noti- 
fying the  tenant  will  be  liable  if  he  suffers  from  the  exposure 
without  proof  of  intent  on  the  part  of  the  owner.^ 

d.  Intention  Sometiines  Essential  to  he  Shown.. 

There  are  cases,  however,  wliere  the  intention  must  be  proved 
as  a  fact.  In  Jefferies  v.  Duncomhe,  11  East,  226,  defendant  had 
erected  and  placed  a  lamp  in  front  of  and  adjoining  to  plaintiff '& 
house  and  kept  it  lighted  there  in  the  day-time,  meaning  thereby 
to  mark  out  the  plaintiff's  house  as  a  house  of  ill-fame.  It  was 
objected  nisi 2:)rius  this  was  not  actionable.  It  was  held  by  Lord 
Ellenborough  to  be  so  and  the  court  afterwards  sustained  tlie  ac~ 
tion.  Here  the  act  by  itself  would  not  have  been  unlawful,  as 
against  any  individual,  but  the  intent  of  doing  so  to  the  injury  of 
the  plaintiff  made  it  so. 

So  in  Deane  v.  Clayton^  7  Taunt.  489,  the  "fixing  and  screwing 
of  spears  upon  defendant's  inclosed  close,  by  itself,  would  not  have 
been  unlawful,  as  against  any  individual;  for  the  fixing  of  an  iron 
railing  with  pointed  top  around  an  area  in  front  of  a  house  is  not 
negligence  such  as  to  create  a  liability  for  injuries  by  one  of  such 
points  to  the  hand  of  a  traveler,  which  he  puts  out  to  save  himself 
from  falling  when  he  slips  on  an  icy  pavement.'  But  the  intent  in 
placing  the  spears  so  as  to  injure,  wound  and  destroy  all  dogs  which 
should  come  on  to  defendant's  land  in  pursuit  of  hares  there,  and 
thereby  destroying  plaintiff's  dog,  constituted  the  wrong.   Of  course 

^Ceiar  v.  Earutz,  60  N.  Y.  229. 

^Kelly  V.  Bennett  (Pa.  Feb.  3,  1890),  7  L.  R.  A.  120. 


16  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

the  instrument  with  which  the  injury  is  inflicted  and  its  location 
and  the  surrounding  circumstances  will  often  determine  as  to  the 
necessity  of  proof  of  express  intent  to  injure.  So  may  the  nature 
or  legality  of  the  act  itself.  Thus  the  intent  was  necessary  to  be 
proved  as  a  matter  of  fact  in  Bloodgood  v.  Ayers,  108  N.  Y.  400, 
11  Cent.  Rep.  108,  where  it  was  held  that  no  person  is  liable  for 
interrupting  a  stream  supplying  a  well  or  spring,  unless  he  knew 
beforehand  where  the  stream  was — a  doctrine  well  settled  by  an 
.unbroken  line  of  authority. 

«.  Placing  Spring   Guns  or  Traps  or  Keeping  a 
Ferocious  Animal  upon  One's  Land. 

There  is  a  line  of  decisions  in  which  it  has  been  held  that  a 
person  who  sets  spring  guns  or  traps  upon  his  own  land  is  liable 
to  persons  injured  by  them,  although  they  were  trespassers. 
'These  decisions  are  based  upon  the  ground  that  a  person  would 
iiave  no  right  to  intentionally  or  directly  shoot  or  entrap  a  tres- 
passer upon  his  land  and  hence  he  cannot  do  that  indirectly  which 
he  has  no  riglit  to  do  directly.  -The  law  holds  him  responsible, 
not  upon  the  ground  of  negligence,  but  upon  the  ground  that  he 
intended  the  consequences  which  followed  his  act.  There  is  an- 
other line  of  decisions  where  a  person  has  been  held  liable  to 
those  who  were  injured  while  passing,  by  permission,  over  his 
private  way.  Thus  a  man  has  a  private  way  lying  over  his  own 
land  to  his  house,  and  he  digs  a  ditch  across  it  or  carelessly  places 
an  obstruction  on  it,  and  the  person  passing  over  the  same  towards 
his  house  is,  without  his  own  fault,  injured.  In  such  case  he 
would  be  held  liable,  because  he  may  be  treated  as  having  invited 
the  person  to  pass  over  this  road  to  his  house,  and  it  would  be  a 
fraud  on  his  part  knowingly  to  place  these  obstructions,  in  the 
nature  of  traps,  in  the  way.^  Although  the  owner  of  land  in  gen- 
•eral  may  use  it  as  he  please  and  leave  it  in  such  condition  as  he  please, 
he  cannot,  without  giving  any  warning,  place  thereon  spring  guns 
or  dangerous  traps  which  may  subject  a  person  going  on  the  prem- 
ises without  actual  permission  or  license,  and  as  a  mere  intruder,  to 
injury,  without  liability.    N"or  may  he,  without  such  warning,  guard 

^  Corby  V.  Hill,  4  C.  B.  N.  S.  556;  Clark  v.  Chambers,  L.  R,  3  Q.  B.  Div. 
327;  Campbell  v.  Boyd,  88  N.  C.  129. 


Chap.  II.]         PLACING  SPRING  GUNS,  ETC.,  UPON    ONe's    LAND.  17 

his  premises  in  the  day-time  by  a  ferocious  animal  permitted  the 
range  of  the  yard  or  grounds,  unnecessarily  exposing  human  life 
in  his  absence.'  The  value  of  human  life  forbids  measures,  for 
the  protection  of  the  possession  of  real  property  against  a  mere 
intruder,  which  may  be  attended  by  such  ruinous  consequences. 
The  duty  in  such  case  grows  out  of  circumstances,  independently 
of  any  question  of  license  to  enter  the  premises." 

^Loomis  V.  Terry,  17  Wend.  490;   Johnson  v.  Patterson,  14  Conn.  1*  State 
V.  Moore,  31  Conn.  479. 
■     '^Brock  V.  Copeland.  1  Esp.  203;  Sarch  v.  Blackburn,  4  Car.  &  P.  297;  Bird 
V.  Holhrook,  4  Bing.  628. 

2 


CHAPTEE  III. 
INJURY  TO  LICENSEE  OR  INTRUDER  ON  PREMISES. 

Sec.  5.  Duty  of  Keeping  Premises  Safe  for  Tliose  Who  Enter  on 
Invitation  ujjon  One^s  Land. 

Sec.  6.  Must  Avoid  Affirmative  Negligence  toward  Licensee. 

Sec.  7.  Actual  or  Constructive  Intent  to  Injure  Intruders  must 
Appear. 

Sec.  8.  Dnty  of  Occupier  of  Premises  Adjoining  Street. — Attract- 
ing Children  from  the  Public  Street,  or  Adjacent  thereto,  into 
Danger. 

Section  Z.—Duty  of  Keeping  Premises  Safe  for  Those 
Who  Enter  on  Invitation  upon  One's  Land. 

The  common  law  or  statute  provides  ample  remedies  for  every 
injury  the  owner  of  land  may  sustain  by  unlawful  entry  upon  hi& 
premises.  An  action  for  damages  may  be  sustained  against  a  man 
for  the  damages  done  by  himself  or  his  cattle,  or  the  cattle  may 
be  distrained  (but  not  killed  or  wounded)  for  the  damage  done. 
But  where  the  owner  or  occupier  of  land,  in  the  prosecution  of 
his  own  purposes  or  business,  or  of  a  purpose  or  business  in  which 
there  is  a  common  interest,  invites  another,  either  expressly  or 
impliedly,  to  come  upon  his  premises,  he  cannot  with  impunity 
expose  him  to  unreasonable  or  concealed  dangers,  as,  for  example, 
from  an  open  trap  in  a  passageway.'  The  duty  in  this  case  is 
founded  upon  the  plainest  principles  of  justice.  The  keeper  of  a 
public  place  of  business  is  bound  to  keep  his  premises,  and 
the  passageways  to  and  from  them,  in  safe  condition,  and  use 
ordinary  care  to  avoid  accidents  or  injury  to  those  properly 
entering  upon  his  premises  on  business."  But  this  rule  only  ap- 
plies to  such  parts  of  the  building  as  are  a  part  of,  or  used  to  gain 
access  to,  or  constitute  a  passageway  to  and  from,  the  business  por- 
tion of  the  building,  and  not  to  such  parts  of  the  building  as  are 

^Indermaur  v.  Daines,  L.  R.  1  C.  P.  374,  L.  R.  2  C.  P.  311. 

^  Parker  V.  Portland  Pub.  Co.  69  Me.  173;  Carleton  v.  Franconia  Iron  &  Steel 
Co.  99  Mass.  316;  Bennett  v.  Louisville  &  N.  B.  Co.  102  U.  S.  577,  26  L. 
ed.  235. 


Chap.  III.]  DUTY   OF    KEEPING   PREMISES    SAFE.  19 

used  for  the  private  purposes  of  the  owner,  unless  the  party  in- 
jured has  been  induced  by  the  invitation  or  allurement  of  the 
owner,  express  or  implied,  to  enter  therein.'  As  was  said  in 
Sweeny  v.  Old  Colony  &  N.  R.  Co.,  10  Allen,  372 :  "  In  order  to 
maintain  an  action  for  an  injury  to  person  or  property  by  reason 
of  negligence  or  want  of  due  care,  there  must  be  shown  to  exist 
some  obligation  or  duty  towards  the  plaintiff  which  the  defendant 
has  left  undischarged  or  unfulfilled."  By  virtue  of  this  prin- 
ciple the  occupants  of  a  wharf,  having  general  possession  and 
control,  are  under  obligations  to  keep  the  premises  in  reasonably 
safe  condition  for  the  use  of  all  persons  who  may  lawfully  resort 
there ;  and  any  person  lawfully  going  there  for  the  transaction  of 
business  to  which  the  premises  are  appropriated  has  a  right  to 
assume  that  the  structure  itself  and  the  access  to  it  are  in  a  reas- 
onably safe  condition."  And  so  the  occupier  of  any  store,  shop, 
warehouse  or  other  place  of  business  is  bound  to  use  care  and  dil- 
igence proportioned  to  the  risk,  to  keep  his  premises  and  the  ap- 
proaches thereto,  and  appliances  thereof,  at  least  reasonably  safe 
for  the  access  and  use  of  those  coming  there  by  his  invitation, 
express  or  implied,  on  any  business  to  be  transacted  or  permitted 
by  him,  or  for  any  other  purpose  beneficial  to  him,  and  is  liable 
for  any  injury  to  any  such  person,  who  is  himself  guilty  of  no 
contributory  negligence,  occasioned  by  his  want  of  such  care  and 
diligence.* 

^ZoeUseh  v.  Tarbell,  10  Allen,  385;  Parker  v.  Portland  Pub.  Oo.  69  Me.  173; 
Pierce  v.  Whitcomh,  48  Vt.  137;  Wilkinson  v.  Fairrie,  1  Hurlst.  &  C.  633; 
Murray  v.  McLean,m  111.  378;  Victory  v.  Baker,  67  N.Y.  366;  Toomey  v. 
Sanborn,  146  Mass.  28,  5  New  Eng.  Rep.  549. 

«  O'Rourke  v.  Peck,  40  Fed.  Rep.  907;  Johnson  v.  Spear,  76  Mich.  139. 

3  Oodley  v.  Eagerly,  20  Pa.  387,  59  Am.  Dec.  735,  note;  Zoebisch  v.  Tar- 
bell, 10  Allen,  385,  87  Am.  Dec.  663  et  seq.,  note;  Bennett  v.  Louisville  & 
N.  R.  Go.  102  U.  S.  577,  26  L.  ed.  235;  Nave  v.  Flack,  90  Ind.  205,  207; 
Elliott  V.  Pray,  10  Allen,  378,  87  Am.  Dec.  653;  Garlelon  v.  Franconia  I. 
&  S.  Co.  99  Mass.  216;  Gilbert  v.  Nar/le,  118  Mass.  278;  Nickerson  v.  Tir- 
rell,  127  Mass.  236;  Donaldson  v.  Wdson,  60  Mich.  86,  1  Am.  St.  Rep. 
487,  and  note;  Welch  v.  McAllister,  15  Mo.  App.  492;  Homer  v.  Everett, 
15  Jones  &  S.  300;  Ritterman  v.  Ropes,  19  Jones  &  S.  25,  29;  Tousey  v. 
Roberts,  21  Jones  &  S.  446;  Ackert  v.  Lansing,  59  N.  Y.  646;  Beck  v.  Gar- 
ter,  68  N.  Y.  283;  Dobiecki  v.  Sharp,  88  N.  Y.  203;  Glussman  v.  Long 
Island  R.  Go.  9  Hun,  618;  Freer  v.  Gameron,  4  Rich.  L.  228;  Toomey  v. 
Sanborn,  146  Mass.  28,  5  New  Eng.  Rep.  549;  Pennsylvania  Go.  v.  Mar- 
ion, 104  Ind.  239,  2  West.  Rep.  234;  Keefe  v.  Boston  &  A.  R.  Go.  142 
Mass.  251,  2  New  Eng.  Rep.  660;  Hotel  Asso.  of  Omaha  v.  Walter,  23  Neb. 
280;  Atlanta  G.  S.  Oil  Mills  v.  Goffey,  80  Ga.  145;  Baltimore  tfe  0.  R.  Go.  v. 
ifcse,  65 Md.  485,  3  Cent.  Rep.  724;  Ghapmanv.Rothwell,  El.  Bl.  &E1.  168; 


20  IMPOSED    DUTIES,  PERSONAL,  [Part    I. 

"Where  a  man  invites  tlie  public  to  use  a  part  of  his  land  by 
connecting  it  with  a  sidewalk,  he  must  exercise  due  diligence  to 
keep  it  in  a  reasonably  safe  condition  for  such  use.'  Where  an 
owner  directly  or  indirectly  induces  persons  to  enter  and  pass  over 
his  premises,  he  thereby  assumes  an  obligation  imposed  by  the 
law,  to  keep  them  in  a  safe  condition  and  suitable  for  such  invited 
and  authorized  use."  The  owner  of  a  store,  between  which  and 
the  sidewalk  there  is  a  vacant  space  covered  with  flagging,  in 
which,  under  a  show  window  of  the  store,  there  is  an  opening,  is 
liable  to  persons  injured  by  a  defect  in  such  opening,  and  he  is  not 
relieved  from  liability  by  the  fact  that  the  opening  is  necessary  to 
give  light  to  the  basement  under  the  store,  when  he  could  have 
protected  such  opening  by  a  railing  so  as  to  render  it  safe  without 
impairing  its  usefulness,'  An  invitation  may  be  inferred  from 
some  designation  or  dedication  of  the  property  to  a  use.* 

Section  6, — Must  Avoid  Affirmcitive  JYegligence  to- 
ward Licensee. 

The  duty  of  keeping  premises  in  a  safe  condition  even  as  against 
a  mere  licensee  may  prove  determinate  of  liability,  where  affirma- 
tive negligence  in  the  management  of  the  property  or  business  of 
the  owner  would  be  likelj^  to  subject  persons  exercising  the  privi- 
lege theretofore  permitted  and  enjoyed  to  great  danger,^  The 
case  of  running  a  locomotive  without  warning  over  a  path  across 
the  railroad  which  has  been  generally  used  by  the  public  with- 

Indermaur  v.  Dames,  L.  R.  1  C.  P.  274,  affirmed,  L.  R.  3  C.  P.  311;  White 
V.  France,  L.  R.  2  C.  P.  Div.  308;  Holmes  v.  North  Eastern  R.  Co.  L.  R.  4 
Exch.  254,  affirmed,  L.  R.  6  Exch.  123;  Francis  v.  Gockrell,  L.  R.  5  Q. 

B,  501;  Corby  v.  Hill,  4  C.  B.  N.  S.  556;  Smith  v.  London  &  St.  K.  Bocks 
Co.  L.  R.  3  C.  P.  336;  Holmes  v.  North  Eastern  R.  Co.  L.  R.  6  Exch.  123. 

>  ^Tomle  V.  Hampton,  129  111.  379. 

^Nichols  V.  Washington,  0.  &  W.  R.  Co.  83  Va.  99,  5  Am.  St.  Rep.  257. 

^Indiana    B.    &    W.    R.   Co.  v.    Barnhart,    115  Ind.   399,  13  West.    Rep. 

425-  Diamond  State  Iron  Co.  v.  (?ifes(Del.  Oct.  27,  1887)  9  Cent.  Rep.  577; 

Sweeny  v.  Old  Colony  <&  N.  R.  Co.  10  Allen,  368. 
^Larmore  v.  Crown  Point  Iron  Co.  101  N.  Y.  391,  3  Cent.  Rep.  409;  Corby 

V.  Hill,  4  C.  B.  N.  S.  556;  Smith  v.   London  &  St.  E.  Docks  Co.  L.  R.  3 

C.  P.  326;  Holmes  Y.  North  Eastern  R.  Co.  L.  R.  6  Exch.  123;  Nave\. 
Flack,  90  Ind.  205;  Carleton  v.  Franconia  Iron  &  8.  Co.  99  Mass.  216; 
Pastene  v.  Adams,  49  Cal.  87;  Bennett  v.  Louisville  &  N.  R.  Co.  102  U.  S. 
577,  26  L.  ed.  235;  Welch  v.  McAllister,  15  Mo.  App.  493. 


Chap.  Ill,]    AFFIRMATIVE   NEGLIGENCE   TOWARDS    LICENSEE,  21 

out  objection  furnislies  an  example,'  But  to  charge  a  defendant 
with  negligence,  on  the  ground  that  he  has  caused  a  place  to  be 
or  to  remain  in  an  unsafe  and  dangerous  condition,  whereby  in- 
jury has  resulted  to  another,  he  must  have  done  or  omitted  to 
do  an  act  by  which  a  legal  duty  or  imposed  obligation  has  been 
violated." 

Where  a  railroad  company  was  under  obligation  to  place  a  gate 
across  a  foot-path  and  a  child  between  four  and  five  years  of  age 
was  found  near  the  track  with  a  foot  cut  off,  the  fact  that 
the  defendant  had  neglected  to  place  the  gate  across  the  foot-path, 
as  it  might  have  deterred  the  child  from  attempting  to  pass,  ren- 
dered it  liable,^ 

In  Clarice  v.  Crimmins  (Sup.  Ct,  July  18, 1890),  32  N.Y.  S.  K. 
978,  at  the  time  of  the  accident  the  defendant  was  digging  a  trench 
in  Broadway  below  Liberty  Street,  and  he  had  there  constructed  a 
bridge  over  such  trench.  This  was  some  ten  days  or  two  weeks 
before  the  plaintiff  was  injured,  and  the  subway  work  was  still 
progressing  when  the  accident  occurred.  A  loose  beam  was  left 
lying  upon  this  bridge,  and  it  had  occasionally  been  knocked  out 
of  position  prior  to  the  accident,  and  replaced  by  laborers  on  the 
subway.  The  accident  was  caused  by  the  hind  wheel  of  a  coal 
cart  running  upon  one  of  the  ends  of  the  beam  and  tilting  the 
other  end  up.  The  end  that  was  thus  elevated  struck  the  plaintiff 
on  her  head  and  injured  her.  A  prima  facie  case  was  thus  made 
out  against  the  defendant.  There  was  from  the  evidence  no  pre- 
sumption that  a  stranger  had  deposited  the  beam  upon  the  bridge. 
On  the  contrary,  there  was  a  fair  inference,  for  the  consideration 
of  the  jury,  that  the  defendant  or  his  servants  had  placed  it  there 
to  serve  as  a  line  of  division  between  the  foot-path  and  the  road- 
way. His  employes,  too,  replaced  it  when  it  was  knocked  out  of 
position,  and,  indeed,  everything  in  the  case  tended  to  support  the 
presumption  that  it  was  part  of  defendant's  bridge.  This  beam 
should  either  have  been  removed  altogether  or  securely  nailed  to 

1  Barry  v.  New  York  C.  &  H.  R.  R.  Co.  92  N.  Y.  290.  See  also  Beck  v. 
Carter,  68  N.  T.  293. 

*  Traskv.  Shoticell,  41  Minn.  66;  Matthews  v.  BoriKee,  51  N.  J.  L.  630;  Fan- 
joy  V.  Scales,  29  Cal.  243;  Khron  v.  Brock,  144  Mass.  516. 

3  Williams  v.  Great  Western  R.  Co.  L.  R.  9  Exch.  157,  43  L.  J.  N.  S.  Exch. 
105,     See  Clarke  v,  Rhode  Island  E.  L.  Co.  16  R.  I.  — ,  17  Atl.  Rep.  59. 


22  IMPOSED   DUTIES,  PEKSONAL.  [Part   I. 

the  bridge — certainly,  when  it  was  seen  that  accidents  might  occur 
from  its  being  knocked  about  by  passing  vehicles. 

Where  it  is  not  practicable  to  guard  a  trap  door  or  hatchway  in 
a  floor  with  a  railing,  the  owner  is  bound  to  give  actual  notice  of 
danger  to  every  person  lawfully  approaching  the  place,  and  in  de- 
fault of  such  notice  is  liable  for  all  injuries  resulting  therefrom.^ 
An  owner  of  pi'eraises  having  a  trap  door  or  hatchway  so  near  a 
rear  door  which  is  in  common  use  as  a  means  of  entering  or  leav- 
ing the  building  as  to  render  it  difficult  for  one  entering  the  door 
without  notice  of  the  hatchway  to  stop  in  time  to  save  himself  from 
falling  into  it  if  it  is  open  is  guilty  of  such  negligence  of  the  im- 
posed duty  to  keep  his  premises  safe  for  persons  lawfully  thereon 
as  will  render  him  liable  for  damages,  where,  after  a  person  has 
passed  out  of  the  door,  the  hatchway  is  opened  and  left  open, with- 
out fastening  the  door  or  stationing  anyone  at  it  to  give  notice,  and 
the  person  on  re-entering  falls  through  the  hatchway  and  is  in- 
jured." 

Where  a  person  entered  a  warehouse,  at  a  door  which  was 
usually  kept  unlocked,  although  not  much  resorted  to,  and  which 
was  occasionally  used,  although  he  was  in  the  habit  of  entering  at 
the  main  entrance  at  the  other  end  of  the  building ;  and  where, 
after  doing  his  errand,  he  started  to  go  out  through  a  gangway 
which  was  in  common  use,  toward  the  main  entrance,  and  was 
killed  by  the  negligence  of  emj)loyes  in  the  warehouse, — recovery 
may  be  had  for  his  death. ^ 

Throwing  heavy  bales  of  merchandise  down  from  the  top  of 
bales  piled  in  a  warehouse,  into  a  gangway  which  is  left  to  connect 
two  entrances  through  which  people  come  to  the  office,  is  not  the 
use  of  proper  care,  where  a  lookout  is  stationed  at  one  entrance 
only,  and  no  precaution  taken  to  prevent  people  from  coming 
along  from  the  other  entrance,  except  a  partial  obstruction  of  the 
passage;  and  where  the  persons  throwing  down  the  bales  cannot 
see  whether  anyone  is  below  or  not.* 

Where  there  is  no  nuisance,  but  a  person  comes  upon  the  land 
without  invitation,  but  simply  as  a  bare  licensee,  and  the  occupier 
or  owner  of  the  property  passively  acquiesces  in  this,  if  an  injury  is 

>  2  Engel  v.  Smith  (Mich.  July  2, 1890)  46  N.  W.  Rep.  21. 

8  *  O'Callaghan  v.  Bode  (Cal.  June  12,  1890)  24  Pac.  Hep.  269. 


Chap.  III.]    INTENT    TO    INJURE    INTKUDERS    MUST    APPEAR.  23 

sustained  by  reason  of  a  mere  defect  in  the  premises,  the  ocenpier 
is  not  liable,  for  he  has  not  been  guilty  of  any  neglect  of  any  duty 
imposed  upon  him  as  such  licensor,  as  the  licensee  has  taken  all 
the  risk  upon  him  except  as  against  the  affirmative  neglect  of  the 
occupier  of  the  premises.* 

A  landlord  is  not  required  to  take  active  measures  to  insure  the 
safety  of  intruders,  where  he  has  set  no  trap  for  the  purpose  of 
injuring  trespassers.'  Nor  is  he  liable  for  an  injury  resulting 
from  the  unlawful  use  of  his  premises  to  one  entering  upon  them 
without  right.  A  trespasser  ordinarily  assumes  all  risk  of  danger 
from  the  condition  of  the  premises ;  and  to  recover  for  an  injury 
happening  to  him  he  must  show  that  it  was  wantonly  inflicted,  or 
that  the  owner  or  occupant,  being  present  and  acting,  might  have 
prevented  the  injury  by  the  exercise  of  reasonable  care  after  dis- 
covering the  danger.'  Nor  will  the  failure  to  prohibit  passage 
over  an  eight-foot  strip  of  land  between  two  houses,  which  have  no 
other  passage  directly  between  them,  constitute  an  invitation  or 
license  sufficient  to  charge  the  owner  with  liability  for  injury  to  a 
person  going  thereon  from  falling  into  an  excavation.'' 

Section  T. — Actual  or  Constructive  Intent  to  Injure 
Intruders  must  Appear, 

The  owner  who  has  neither  expressly  nor  impliedly  invited  the 
public  to  pass  over  his  grounds  is  under  no  imposed  duty  to  keep 
them  free  from  pitfalls  or  in  a  condition  of  safety  for  those  who 

1  Ousick  V.  Adams,  115  N.  Y.  55;  Campbell  v.  Lunsford,  83  Ala.  512;  Eiiiqht 
V.  Abert,  6  Pa.  472;  Sweeny  v.  Old  Colony  &  N.  R.  Go.  10  Allen,  368; 
Evansville  &  T.  H.  E.  Co.  v.  Griffin,  100  lad.  221;  Roulston  v.  Clark,'d  E. 
D.  Smith,  366;  Gautret  v.  Egerton,  L.  R.  2  C.  P.  371,  36  L.  J.  N.  S.  C.  P. 
191;  Hounsell  v.  Smyth,  7  C.  B.  N.  S.  731.  See  also  Wilkinson  v.  Fair- 
rie,  32  L.  J.  N.  S.  Exch.  73,  1  Hurl.  &  C.  633;  Barchell  v.  Hickisson,  50 
L.  J.  N.  S.  Q.  B.  101. 

« Aldrich  v.  Wright,  53  N.  H.  404. 

«  Clark  V.  Manchester,  62  N.  H.  577;  State  y.  Manchester  &  L.  R.  Co.  52  N. 
H.  528;  Morrissey  v.  Eastern  R.  Co.  126  Mass.  377;  Severy  v.  Nickerson, 
120  Mass.  306;  Morgan  v.  Halloxcell,  57  Me.  375;  Pierce  v.  Whitcomb,  48  Vt. 
127;  McAlpin  v.  Powell,  70  N.  Y.  126;  St.  Louis,  V.  &  T.  II.  R.  Co.  v. 
Bell,  81  111.  76;  Gavin  v.  Chicago,  97  111.  66;  Wood  v.  School  District,  44 
Iowa,  27;  Cauley  v .■  Pittsburgh,  C.  &  St.  L.  R.  Co.  95  Pa.  398;  Gillespie  v. 
McGowan,  100  Pa.  144. 

*  Reardon  v.  Thompson,  149  Mass.  267.  See  Converse  v.  Walker,  30  Hun, 
596;  Pierce  v.  Whitcomb,  48  Vt.  127;  Evansville  &  T.  H.  R.  Co.  v.  Griffin. 
100  Ind.  221 ;  Galligan  v.  Metacomet  Mfg.  Co.  143  Mass.  527. 


24  IMPOSED    DUTIES,  PERSONAL.  [Part  I. 

in  pursuit  of  tlieir  own  pleasure  or  convenience  pass  over  such 
premises,  even  though  it  be  with  the  acquiescence  of  the  owner, 
there  being  nothing  thereon  known  to  him  amounting  to  a 
nuisance.* 

A  person  who  moves  around  in  the  dark  in  a  strange  room,  into 
wliich  he  has  entered  of  his  own  accord  and  witliout  direction 
from  the  owner,  is  himself  responsible  for  his  own  misfortune  if 
injured.' 

A  stranger  who  comes  to  a  manufacturing  establishment  on 
business  or  otherwise  has  no  right  to  choose  for  himself  his  means 
of  ingress  and  egress,  and  determine  where  bulky  articles  shall  be 
unloaded,  or  to  unload  them  without  inquiry  and  notice;  and  if  he 
does  so  it  is  at  his  own  risk.' 

To  constitute  negligence  in  the  owner  of  premises  a  duty  must 
be  shown  to  have  been  broken,  what  the  duty  was  and  how  it  was 
broken.  It  is  not  sufficient  that  a  careless  act  has  been  done  by 
the  defendant  by  which  the  plaintiff  has  sustained  loss.*  The  lia- 
bility for  an  omission  to  do  something  depends  entirely  on  the 
extent  to  which  a  duty  is  imposed  to  cause  the  thing  to  be  done.* 

A  person  who  goes  upon  the  land  of  another  without  invitation^ 
to  secure  employment  from  the  owner  of  the  land,  is  not  entitled 
to  indemnity  from  such  owner  for  injury  received  from  a  de- 
fective machine  on  the  premises,  not  obviously  dangerous,  which 
he  passes  during  the  course  of  his  journey.' 

In  Parker  v.  Portland  Pub.  Co.,  69  Me.  173,  plaintiff  went  to 
defendant's  newspaper  office,  late  at  night,  to  insert  an  advertise- 
ment in  its  paper.  The  counting-house  being  closed,  he  ascended 
to  the  upper  floor,  where,  wandering  about  the  hall  in  search  of  a 

J  Beardon  v.  Thompson,  149  Mass.  267;  Nicholson  v.  Erie  R.  Co.  41  N.  Y. 
535;  Zoelisch  v.  Tarbell,  10  Allen,  385;  Pittsburgh,  Ft.  W.  &  G.  R.  Co.  v. 
Bingham,  29  Ohio  St.  364;  Flood  v.  Doodley,  15  N.  Y.  Week.  Dig.  47; 
Leary  v.  Cleveland,  C.  G.  &  I.  R.  Co.  78  Ind.  333;  Morgan  v.  Pennsyl- 
vania R.  Co.  19  Blatchf,  239;  Indianapolis  v.  Emm^elman,  108  Ind.  530,  6 
West.  Rep.  566. 

» ^Bedell  v.  Berkey,  74  Mich.  435. 

*  Daniel  v.  Metropolitan  R.  Co.  L.  R.  5  H.  L.  45,  40  L.  J.  N.  S.  C.  P. 
131;  Gatttret  v.  Egerton,  L.  R.  3  C.  P.  274,  36  L.  J.  N.  8.  C.  P.  191;  Col- 
lins V.  Selden,  L.  R.  3  C.  P.  498,  37  L.  J.  N.  S.  C.  P.  233;  Bulman  v.  Fur- 
ness  R.  Co.  33  L,  T.  N.  S.  430;  Whittaker's  Smith,  Neg.  2. 

B  Mercy  Docks  &  H.  Board  v.  Gibbs,  L.  R.  1  H.  L.  115,  35  L.  J.  N.  S. 
Exch.  335. 

«  L'lrmore  v.  Croton  Point  Iron  Co.  101  N.  Y.  391,  2  Cent.  Rep.  409;  Byrne 
V.  New  York  C.  &  H.  R.  R.  Co.  104  N.  Y.  363,  6  Cent.  Rep.  393. 


Chap.  III.]    INTENT   TO    INJURE    INTRUDERS    MUST    APPEAR.  25- 

door,  he  fell  into  an  elevator  opening,  the  door  of  which  had  not 
been  closed,  and  was  injured.  Defendant  was  held  uot  liable. 
So  where  plaintiff  went  at  night  to  defendant's  house  to  buy 
oats,  and  they  went  together  to  the  barn  where  the  oats  were  kept, 
and  while  defendant  was  seeking  a  measure  plaintiff  walked  about 
the  barn  in  the  dark,  and  fell  through  a  hole  in  the  floor  and  was 
injured,  it  was  held  that  defendant  was  not  liable  because  the 
walking  about  the  floor  in  the  dark  was  not  invited  by  him,  nor 
was  it  a  part  of  the  business.* 

A  man  must  use  his  property  so  as  not  to  incommode  his  neigh- 
bor; but  this  maxim  only  extends  to  neighbors  who  do  not  inter- 
fere with  it  or  enter  upon  it.^  A  mere  passive  acquiescence  on 
the  part  of  the  owner  or  occupant  in  the  use  of  real  property  by 
others  does  not  involve  him  in  any  liability  to  them  for  its  unfit- 
ness for  use.'  If  the  dangers  are  patent  and  visible,  the  visitor 
who  comes  to  and  is  received  within  the  home  must  share  these 
dangers  in  common  with  the  other  members  of  the  family.* 

A  mere  naked  license  or  permission  to  enter  or  pass  over  an 
estate  will  uot  create  a  duty  nor  impose  an  obligation  on  the  part 
of  the  owner  or  person  in  possession  to  provide  against  the  danger 
of  accident.*  When  a  person  has  a  license  to  go  upon  the  grounds 
or  the  inclosure  of  another,  he  takes  the  premises  as  he  finds 
them,  and  accepts  whatever  peril  he  incurs  in  the  use  of  such  li- 
cense.* An  open  hole  in  land,  which  is  not  concealed  otherwise 
than  by  darkness,  is  a  danger  which  a  licensee  must  avoid  at  his 
peril.''  One  who  enters  the  private  apartments  of  another  at  the 
mere  license  of  the  latter  does  so  subject  to  all  the  attendant 
risks.^ 

^Pierce  v.  Whitcortib,  48  Vt.  127. 

^KnigU  v.  Ahert,  6  Pa.  472;  Moore  v.  Logan  Iron  &  Steel   Co.  (Pa.  Oct.  4, 

1886),  4  Cent.  Rep.  506. 
^Nicholson   v.   Erie  R.  Go.  41  N.  Y.  525;  Sweeny  v.  Old  Colony  &  N.  B.  Co. 

10  Allen,  368;  Zoebmh  v.  Tarbell,  Id.  385;  Oillis  v.  Pennsylvania  11.  Co. 

59  Pa.  129. 
*Soxithcot6    V.    Stanley,  1  Hurl.  &  N.  247;  Flower  v.  Pennm/lvania  R.  Co.  6^ 

Pa.  210;  Moore  v.  Logan  Iron  &  Steel  Co.  (Pa.  Oct.  4,  1886),  4  Cent.  Rep. 

506;  1  Addison,  Torts,  280,  281. 
^Sweeny  v.   Old  Colony  &  N.  R.  Co.  10  Allen,  373;  Grogan  v.  Schiele,  53  Conn.. 

186,  1  New  Eng.  Rep.  311. 
Indiana,  B.  &W.  R.  Co.  v.  Barnliart,  115  Ind.  399. 
''Reardon  v,  Thompson,  149  Mass.  267. 
^Schmidt  v.  Bauer,  80  Cal.  565,  5  L.  R.  A.  580,  and  note. 


:26  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

Placing  an  iron  railing  with  pointed  top  around  an  area  in  front 
of  a  house  is  not  negligence  such  as  to  create  a  liability  for  injur- 
ies by  one  of  such  points  to  the  hand  of  a  traveler,  which  he  puts 
•out  to  save  himself  from  falling  when  he  slips  on  an  icy  pave- 
ment.' Unless  contrivances  are  placed  upon  premises  with  an 
actual  or  constructive  intent  to  hurt  intruders,  the  occupier  or 
owner  is  not  liable  for  injuries  resulting  to  persons  by  reason  of 
the  condition  in  which  the  premises  have  been  left,  or  from  the 
prosecution  of  the  business  thereon  in  which  the  proprietor  had 
a  right  to  engage."  These  cases  proceed  upon  the  ground  that 
the  owner  has  done  nothing  to  produce  injury  to  those  who  have 
■of  their  own  motion  strayed  upon  or  invaded  the  premises  where 
they  are  injured.  In  all  such  cases  the  owner  may  dig  an  excava- 
tion on  his  own  land,  not  substantially  adjoining  a  public  high- 
way, and  no  action  lies  against  him  by  one  who  has  fallen  into  the 
pit." 


Section  8. — Duty  of  Occupier  of  Fremises  Adjoining 
Street. — Attracting  Children  from  the  PwhliG 
Street,  or  Adjacent  thereto,  into  Danger. 

But  there  is  a  clear  distinction  between  the  cases  just  cited  and 
the  case  where  an  excavation  is  made  in  or  so  near  a  highway  as 
that  one,  while  rightfully  using  the  highway,  may,  without  fault, 
sustain  injury  by  falling  into  the  excavation.  When  an  owner  or 
occupier  of  land  makes  an  excavation  upon  his  land  so  near  to  a  pub- 
lic highway  as  to  be  dangerous  under  ordinary  circumstances  to  per- 
sons passing  by,  it  is  his  duty  to  take  reasonable  care  to  guard  such 
•excavation;  and  he  is  liable  for  injuries  caused,  even  if  such  j)er- 

^Eelly  V.  Bennett  (Pa.  Feb.  3,  1890),  7  L.  R.  A.  120. 

^Galveston  Oil  Co.  v.  Morton,  70  Tex.  400;  Emnsville  &  T.  H.  R.  Co.  v. 
Qriffin,  100  Ind.  221-225;  Gillespie  v.  McGoioan,  100  Pa.  144;  Gramlich 
V.  Wurst,  86  Pa.  74,  27  Am.  Rep.  684;  Cauley  v.  Pittsburg,  C.  &  St.  L. 
R.  Co.  95  Pa.  398,  40  Am.  Rep.  664;  McAlpin  v.  Powell,  70  N.  Y.  126; 
Hargreaves  v.  Deacon,  25  Mich.  1 ;  Burdick  v.  Cheadle,  26  Ohio  St.  393. 

^Reardon  v.  Thmipson,  149  Mass.  267;  Cusick  v.  Adams,  115  N.  Y.  55; 
Hardcastle  v.  South  Yorkshire  R.  &  R.  D.  Co.  4  Hurl.  «&  N.  67;  Hounsell  v. 
Smyth,  29  L.  J.  N.  S.  C.  P.  203,  7  C.  B.  N.  S.  731;  Pittsburg,  Ft.  W.  & 
C.  R.  Co.  V.  Bingham,  29  Ohio  St.  364;  Sweeny  v.  Old  Colony  &  N.  R. 
Co.  10  Allen,  368;  Knight  v.  Abert,  6  Pa.  472;  Nicholson  v.  Erie  R.  Co.  41 
N.  Y.  525;   Crogan  v.  Schiele,  53  Conn.  186,  1  New  Eng.  Rep.  311, 


Chap.  III.]  occuriER  of  premises  adjoining  street.  27 

sons  are  consciously  or  unconsciously  straying  from  the  way.* 
Nor  less  clear  is  the  distinction  between  the  case  in  which  the  ex- 
cavation is  made,  or  sometliing  calculated  to  amuse  or  attract  chil- 
dren is  done  or  left,  at  a  place  where  the  child  has  a  right  to  be, 
and  one  in  which  the  same  thing  is  done  at  a  place  where,  in  order 
to  reach  the  place  of  danger,  the  child  becomes  an  intruder  upon 
the  premises  of  another.  Whoever,  while  passing  along,  or  when 
properly  in,  a  public  street,  suffers  an  injury  while  exercising  the 
degree  of  care  which  the  law  requires  of  such  person,  by  ice  or 
snow,  by  reason  of  an  improperly  constructed  roof  or  negligence 
in  cleaning  the  same,  or  from  material  from  the  building  or  at- 
tached to  it  becoming  loose  from  the  owner's  negligence,  falling 
upon  him ;  or  from  the  falling  of  a  wall  by  reason  of  defective 
construction,  or  its  having  become  weakened  by  time  or  fire,  and 
suffered  negligently  so  to  remain," — whether  a  building  has  been 
made  unsafe  by  the  agency  of  time  or  the  acts  of  trespassers,  where 
it  was  within  his  power  to  prevent  such  condition,  as,  in  either 
evQnt,  it  is  the  owner's  duty  to  keep  his  building  in  a  safe  condi- 
tion,* — by  falling  into  an  excavation  which  has  been  made  in  or 
near  such  street,"  or  from  obstructions  carelessly  placed  upon  the 
sidewalk,* — is  entitled  to  maintain  an  action  for  such  injury  against 
the  person  making  the  excavation  or  causing  the  injury  by  a  de- 
fective building,  etc.  In  such  a  case  a  duty  is  imposed  upon  such 
person  to  make  it  safe  in  respect  to  all  persons  who  have  a  right 
to  use  the  street.  But  in  all  these  cases,  a  want  of  proper  care  on 
the  part  of  the  occupier  of  the  premises  must  be  shown  before  a 

^Blyth  V.  Topham,  Cro.  Jac.  158;  Knight  v.  Ahert,  6  Pa.  472;  Hounsell 
V.  Smyth,  29  L.  J.  N.  S.  C.  P.  303,  7  C.  B.  N.  S.  731;  Barnes  v.  Ward, 
9  C.  B.  392;  Wettor  v.  Bunk,  4  Post.  &  P.  298. 

^Riley  v.  Simpson,  83  Cal.  217,  7  L.  R.  A.  622;  Hannem  v.  Pence,  40  Minn, 
127;  Mairs  v.  Manhattan  Real  Estate  Asso.  89  N.  Y.  498;  Anderson  v. 
East,  117  Ind.  126,  2  L.  R.  A.  712;  Neffv.  Paddock,  27  Wis.  546;  Wilkiri- 
son  V.  Beiroit  Steel  &  Spring  Works,  73  Mich.  405;  Walsh  v.  Mead,  8  Hun, 
387;  Shipley  v.  Fifty  Asso.  106  Mass.  194;  Murray  v.  McShane,  52  3Id. 
217;  Garland  v.  Toicne,  55  N.  H.  55;  Hussey  v.  Ryan,  64  Md.  426,  3 
Cent.  Rep.  626;  Salisbury  v.  Herchenroder,  106  Mass.  458. 

^Tucker  v.  Illinois  C.  B.  Co.  (La.  Jan.  29,  1890),  7  So.  Rep.  124. 

*Malloy  V.  Uiberian  Sav.  &  Loan  Soc.  (Cal.  April  22,  1889)  21  Pac.  Rep.  525; 
Congreve  v.  Morgan,  18  N.  Y.  84,  followed  in  Bavenport  v.  Ruckinan,  37 
N.  Y.  568.  Whether  the  covering  to  an  opening  in  the  sidewalk  was 
made  and  adjusted  in  a  way  that  was  reasonably  safe  and  secure  is  for 
the  jury.     Bickson  v.  Hollister,  123  Pa.  421. 

^Maddox  v,  Cunningham,  68  Ga.  431;  Oleason  v.  Amsdell,  9  Daly,  398. 


28  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

liability  can  be  imposed.  Thus,  where  the  owner  of  a  building 
was  informed  on  Sunday  that  his  walls  were  settling  and  they  fell 
on  the  next  day,  the  owner  could  not  be  said  to  have  neglected  the 
duty  of  care  imposed  on  him  to  keep  his  building  in  safe  condition, 
unless  the  danger  was  so  obvious  that  a  reasonable  and  prudent 
man,  in  his  situation,  whose  personal  safety  and  the  security  of  his 
property  depended  on  the  walls,  would  have  taken  more  prompt 
measures  to  secure  them.* 

Where  two  buildings,  one  of  which  was  owned  by  the  defend- 
ant and  whose  side  walls  stood  near  each  other  upon  adjoining 
lots,  were  burned,  portions  of  them  remaining  standing  for  six 
months,  at  which  time  plaintiff  was  injured  by  the  fall  of  de- 
fendant's wall,  while  he  was  removing  his  own,  it  was  held  that 
defendant  could  not  be  charged  with  any  neglect  of  imposed  duty, 
unless  it  appeared  that  defendant  knew  of  the  contemplated  re- 
moval, or  it  was  shown  that  defendant's  wall  was  in  such  a  condi- 
tion that  it  would  have  fallen  before  the  fire  or  removal  of  the 
other  wall."  So  where  the  defendant  has  used  such  care  in  qpn- 
struction  of  the  wall  as  persons  of  ordinary  prudence  would  exercise 
under  the  same  circumstances,  he  is  not  liable  where  it  falls  dur- 
ing an  extraordinary  rainstorm.* 

Streets  are  open  to  persons  of  all  ages,  and  children  are  and  of 
necessity  must  be  permitted,  to  some  extent  at  least,  to  go  upon  the 
streets  of  towns  and  cities  without  incurring  the  imputation  of  neg- 
ligence, or  bringing  their  parents  under  so  serious  a  reproach.  It 
would  be  intolerable  to  hold,  as  matter  of  law,  that  a  parent,  hav- 
ing no  knowledge  of  the  presence  or  probability  of  danger,  was, 
nevertheless,  guilty  of  negligence  in  permitting  a  child  of  reasona- 
ble but  immature  judgment  to  pass  beyond  the  door-yard  into  the 
street  without  an  attendant.*  Therefore  the  owner  of  any  machine 
which  he  knows  to  be  dangerous  to  children  too  young  to  know  the 
danger,  and  of  too  immature  judgment  or  discretion  to  control  their 

^Schwartz  v.  Oilmore,  45  111.  454.    See  fiote  to  Zoebisch  v.   Tarhdl,  87  Am. 

Dec.  666. 
^Malwney  v.  Libbey,  123  Mass.  20. 
^ Gouts  V.  Neer,  70  Tex.  468. 
*Birkett  v.  Knickerbocker  lee  Co.   110  N.  Y.  507;  McQarry  v.   Loomis,   63 

N.  Y.  104;  Mangam  v.  Brooklyn  B.  Co.  38  N.  Y.  ^5;  Indianapolis  v. 

Emmelman,  108  Ind.  530,  6  West.  Rep.  566;  Marsland  v.  Murray,  148 

Mass.  191. 


Chap.  III.]    OCOUPIEE    OF    PREMISES    ADJOINING    STREET.  29 

natural  instinct  to  amuse  themselves  with  anything  that  may  at. 
tract  them  as  a  plaything,  and  which  he  knows  or  ought  to  know 
may  attract  them,  and  who  knows  it  is  so  placed  that  it  does  attract 
them  to  play  with  it, — is  under  a  duty,  as  to  such  children,  to  ex- 
ercise the  degree  of  care  which  an  ordinarily  prudent  person  would 
use  to  prevent  its  injuring  them.'  Whoever,  therefore,  does  any- 
thing in  or  immediately  adjacent  to  a  public  street,  park  or  locality 
where  children  may  rightfully  congregate  and  are  accustomed  so  to 
do,  calculated  to  attract  children  into  danger,  which  they  cannot 
appreciate,  or  are  too  untrained  and  inexperienced  to  resist,  owes 
the  imposed  duty  of  protecting  them  against  the  temptation  he 
places  before  them,  by  suitably  guarding  the  source  of  danger,  or, 
in  case  this  cannot  be  done,  by  giving  timely  warning  to  their 
parents  or  guardians  of  the  existence  of  the  danger." 

"While,  in  the  case  of  its  turn-tables  and  trucks  standing  on  its 
tracks,  by  playing  with  which  children  are  injured,  it  is  competent 
for  a  railroad  company,  in  order  to  show  that  it  exercised  due  care, 
to  show  that  it  secured  the  turn-tables  and  trucks  in  the  way  cus- 
tomary with  all  railroad  companies,  such  proof  is  not  conclusive 
that  due  care  was  exercised,* 

Where  an  elevator  opened  on  a  street  by  a  sliding  door,  un- 
guarded and  open,  and  a  child  four  years  and  a  half  old  was  in- 
jured on  approaching  the  door  by  a  descending  car,  the  owner  was 
held  liable.*  And  where  a  child  three  years  old  was  injured 
while  playing  about  a  cogwheel,  left  revolving,  unguarded  and  ex- 
posed in  an  open,  uninclosed  space,  some  20  feet  from  the  high- 
way, a  recovery  was  sustained.  The  Iowa  court  in  Wood  v.  In- 
dejpendent  School  Dist.^  44  Iowa,  27,  where  the  action  was  against 

^O'Mnlley  v.  St.  Paul,  M.  &  M.  R  Co.  (Minn.  May  16,  1890)  45  N.W.  Rep. 
440;  Omge  City  v.  Larkins,  40  Kan.  206,  2  L.  R.  A.  56;  Pittsbiinjh,  C.  c6 

St.  L.  R.  Co.  V.  Shields,  47  Ohio  St. ,  8  L.  R.  A.   464;  Harriman  v. 

Pittsburgh,  G.  &  St.  L.  R  Co.  45  Ohio  St.  11;  Sio^ix  City  &  P.  R.  Co.  v. 
Stov.t,  84  U.  S.  17  Wall.  657f  21  L.  ed.  745;  Kansas  C.  R.  Co.  v.  Fitz- 
simmons,  22  Kan.  687;  JV^agel  v.  Missouri  P.  R.  Co.  75  Mo.  653;  Eoansich 
Y.Gulf,  a  &  S.  F.  R.  Co.  57  Tex.  126;  Feefe  v.  Milwaukee  &  St.  P.  R.  Co. 
21  Minn.  207;  Koons  v,  St.  Louis  (&  I.  M.  R.  Co.  65  Mo.  592. 

^Indianajwlis  v.  Emmelman,  108  Ind.  530,  6  West.  Rep.  566;  Chicago  v. 
Hesing,  83  111.  204;  Chicago  v.  Major,  18  III.  349;  Niblett  v.  Nashville,  12 
Heisk.  684;  Grates  v.  Thomas,  95  Ind.  361;  McAlpin  v.  Powell,  70  N.  Y. 
126;  Beck  v.  Carter,  68  N.  Y.  283. 

^O'Malley  v.  St.  Paul,  M.  <&  M.  R.  Co.  (Minn.  May  16,  1890)  45  N.  W. 
Rep.  440. 

*Mullaney  v.  Spence,  15  Abb.  Pr.  N.  S.  319. 


30  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

tlie  employer,  the  negligence  being  that  of  a  contractor,  declared 
that  while  not  holding  that  there  may  not  be  pieces  of  machinery  so 
peculiarly  dangerous  that  a  right  of  action  would  exist  at  common 
law  for  injuries  received  from  them,  if  left  unguarded,  it  was  not 
thought  that  a  well-driving  machine  left  in  the  yard  of  a  public 
school-house  was  such  machinery. 

The  Supreme  Court  of  New  Hampshire  in  Frost  v.  Eastern  R. 
Co.,  64  N.  H.  220,  4  New  Eng.  Rep.  527,  states  that  it  is  not  pre- 
pared to  adopt  the  doctrine  of  Sioux  City  (&  P.  R.  Co.  v.  Stout, 
84  U.  S.  17  Wall.  657,  21  L.  ed.  745,  and  cases  following  it,  that 
the  owner  of  machinery  or  other  property  attractive  to  children 
is  liable  for  injuries  happening  to  them  when  wrongfully  inter- 
fering with  it  on  his  own  premises.  It  is  said  that  one  "is  not 
an  insurer  of  the  safety  of  infant  trespassers.  One  having  in 
his  possession  agricultural  or  mechanical  tools  is  not  responsible 
for  injuries  to  trespassers  by  their  careless  handling ; "  that  one 
owning  a  blueberry  pasture  or  an  artificial  pond  need  not  exercise 
care  in  procuring  gates  and  bars  to  protect  straying  children  from 
accidents.  It  is  said  that  "  the  owner  is  under  no  duty  to  a  mere 
trespasser  to  keep  his  premises  safe,  and  the  fact  that  the  tres- 
passer is  an  infant  cannot  have  the  effect  to  raise  a  duty  where 
none  otherwise  exists.  '  The  supposed  duty  has  regard  to  the 
public  at  lai'ge  and  cannot  wxll  exist  as  to  one  portion  of  the  pub- 
lic and  not  to  another  under  the  same  circumstances.  In  this 
respect  children,  women  and  men  are  upon  the  same  footing.  In 
cases  where  certain  duties  exist  infants  may  require  greater  care 
than  adults,  or  a  different  care ;  but  precautionary  measures  hav- 
ing for  their  object  the  protection  of  the  public  must,  as  a  rule, 
have  reference  to  all  classes  alike.' "  '  It  seems  hardly  a  fair  con- 
clusion from  the  premises  that  because  the  owner  of  a  blueberry 
pasture  is  not  liable  to  trespassers  who  tear  their  clothing,  that  there- 
fore one  who  places  machinery  upon  his  premises  is  freed  from  the 
responsibility  to  an  infant  who  may  be  attracted  thereto  acting  un- 
der a  natural  childish  impulse  of  curiosity.  In  the  present  state  of 
society  and  the  larger  burdens  that  are  imposed  upon  each  mem- 
ber of  a  civilized  community  to  do  nothing  which  will  probably 
work  harm  to  his  neighbor  is  it  conclusive  of  the  matter  to  say 

^Nolan  V.  New  York,  N.  H.  &  H.  B.  Co.  53  Conn.  416, 1  New  Eng.  Rep.  826. 


Chap.  III.]     OCCUPIER    OF    PREMISES    ADJOINING    STREET.  31 

tliat  "  the  fact  tliat  the  trespasser  is  an  infant  cannot  liave  the 
effect  to  raise  a  duty  where  none  otherwise  exists ; "  and  that  tlie 
"  supposed  duty  has  regard  only  to  the  public  at  large  and  cannot 
well  exist  as  to  one  portion  of  the  public  and  not  to  another  under 
the  same  circumstances  ?  In  this  respect  children,  women  and 
men  are  upon  the  same  footing."  * 

In  Rassenyer  v.  Michigan  C.  R.  Co.,  48  Mich.  204,  it  is  said 
that  the  law  ought,  under  all  circumstances  where  they  become 
important,  to  make  allowances  for  any  differences  existing  by 
nature  between  men  and  women,  and  also  for  any  that  grow  out 
of  their  occupations,  modes  of  life,  education  and  experience.  A 
woman,  for  example,  driving  a  horse  on  the  highway,  may  be  pre- 
sumed somewhat  wanting  in  the  "amount  of  knowledge,  skill, 
dexterity,  steadiness  of  nerve  or  coolness  of  judgment  —  in  short, 
the  same  degree  of  competency,"  which  we  may  presume  in  a  man  ; 
and  the  person  meeting  her  under  circumstances  threatening  col- 
lision should  govern  his  own  conduct  with  regard  to  her  probable- 
deficiencies.' 

In  Snow  V.  Provincetown,  120  Mass.  580,  a  question  of  con- 
tributory negligence  was  made  against  a  woman  who,  in  attempting 
to  pass  a  cart  in  a  public  way,  which  had  commenced  backing^ 
towards  her,  accidentally  fell  over  an  embankment  and  was  in- 
jured. The  following  instruction  by  the  trial  judge  to  indicate 
the  degree  of  care  required  of  the  plaintiff  was  held  unexception- 
able :  "  Care  implies  attention  and  caution,  and  ordinary  care  is 
such  a  degree  of  attention  and  caution  as  a  person  of  ordinary 
prudence  of  the  plaintiff's  sex  and  age  would  commonly  and  might 
reasonably  be  expected  to  exercise  under  like  circumstances." 

In  Bloomington  v.  Perdue,  99  111.  329,  it  was  ruled :  "  Yet, 
when  the  actor  is  a  woman,  an  instruction  that  '  she  is  bound  to 
observe  the  conduct  of  a  woman  of  common  and  ordinary  pru- 
dence '  cannot  be  held  legally  erroneous  because  of  being  thus 
special." 

In  Hydraulic  WorJcs  Co.  v.  Orr,  83  Pa.  332,  adjoining  a  factory 
there  was  a  private  alley,  which  communicated  with  a  public  street 
by  a  gate  which  was  frequently  left  open  by  employes,  though 

Wolan  V.  Neio  York,  IV.  H.  &  H.  R.  Co.  53  Conn.  416, 1  New  Eng.  Rep.  826. 
'Citing  Darnels  v.  Glegg,  28  Mich.  33,  42. 


-32  IMPOSED   DUTIES,  PERSONAL.  [Part    I. 

■contrary  to  orders.  In  this  alley,  twenty-four  feet  from  tlie  street, 
was  a  platform,  to  be  raised  and  lowered  in  receiving  and  shipping 
goods.  This  platform,  when  raised,  rested  against  the  wall,  and 
was  held  up  only  by  its  own  slight  inclination,  having  no  fastening. 
A  child  six  years  old,  playing  in  the  street,  strayed  into  the  alley 
and  was  killed  by  the  fall  of  the  platform.  The  lessees  of  the  fac- 
tory were  declared  liable.  This  ground  was  stated  :  "  Now  can  it 
be  righteously  said  that  the  owner  of  such  a  dangerous  trap,  held 
by  no  fastening,  so  liable  to  drop,  so  near  a  public  thoroughfare,  so 
often  left  open  and  exposed  to  the  entries  of  persons  on  business, 
by  accident  or  from  curiosity,  owes  no  duty  to  those  who  will  be 
probably  there?  The  common  feeling  of  mankind  (as  well  as  the 
maxim  sic  utere  tuo  ut  alieniLm  non  laedas)  must  say  this  cannot 
l3e  true.  That  this  spot  is  not  so  private  and  secluded  as  that  a 
man  may  keep  dangerous  pits  or  deadfalls  there  without  a  breach 
of  duty  to  society.  On  the  contrary,  the  mind,  impelled  by  the 
instincts  of  the  heart,  sees  at  once  that  in  such  a  place,  and  under 
these  circumstances,  he  had  good  reason  to  expect  that  one  day  or 
other  probably  a  thoughtless  boy  in  the  buoyancy  of  play  would 
be  led  there,  and  injury  would  follow, — especially  when  prompted 
T3y  knowledge  that  a  fastening  was  needed.'" 

It  is  said  that  one  owes  no  duty  to  an  intruder  or  trespasser 
■except  not  intentionally  to  harm  him.  Is  this  true  as  to  a  young 
child  known  to  be  in  danger  of  being  injured  ?  Is  there  not  an 
active  duty  owing  to  protect  the  helpless  child  from  known  dan- 
gers on  one's  own  land?  If  this  duty  exist,  the  doctrine  laid 
down  in  the  New  Hampshire  and  Connecticut  cases  cannot  be 
true.  As  to  the  mature  trespasser  no  duty  of  care  is  owing.  The 
land  owner,  however,  must  not  become  an  active  aggressor,  by 
exposing  dangerous  machinery  unfastened  where  it  will  probably 
attract  children,  but  as  to  the  child  known  to  be  exposed  to  danger 
by  one's  own  act  the  law  of  humanity,  and  therefore  the  common 
law,  demands  care.  The  real  question  is  not  whether  a  duty  is  ow- 
ing to  a  child,  which  under  the  same  circumstances  would  not  be 
owing  to  a  grown  person,  but,  putting  the  case  personally,  whether, 
knowing  that  an  act  of  yours  is  liable  to  induce  anyone  to  expose 
himself  to  danger,  it  is  not  your  duty  to  anticipate  such  action  on 
'This  decisioa  was  approved  in  Oramlich  v.  Wurst,  86  Pa.  74. 


Chap.  III.]      OCCUPIER   OF    PREMISES    ADJOINING    STKEET.  33 

his  part  and  use  care  to  avoid  injuring  him.  If  an  act  you  are  con- 
templating, right  in  itself,  will  likely  cause  someone  to  expose  him- 
self to  danger  which  he  does  not  anticipate,  it  is  your  duty  to  take 
care  that  such  exposure  does  not  prove  injurious  to  him.  In  deter- 
mining the  question  whether  the  act  will  induce  such  exposure,  it  is 
your  duty  to  consider  the  motives  and  impulses  that  induce  action 
by  others  who  are  likely  to  he  influenced  by  your  act.  If  men 
may  be  misled  in  their  judgment  by  your  act,  you  must  take 
measures  to  warn  them  or  to  avoid  injuring  them  by  pro])er  care. 
If  children  from  their  known  childish  instincts  and  curiosity  may 
be  led  into  danger,  such  care  is  due  them  also. 
3 


CHAPTER  IV. 
NEGLIGENT  ACT  CONiSTlTUTING  A  NUISANCE. 

Sec.  9.   Care  Required  lohere  the  Act  if  Unautliorized  would  he  a 

Nuisance. 
Sec.  10.  Liability  where  Duties  are  Transferred,  the  Doing  of  Which 

Constitutes  a  Nuisance. 

Section  9. — Cctre  Required  ivhere  the  Act  if  Unau- 
thorized would  he  a  Jfuisance. 

Where  an  act  is  authorized,  the  doing  of  which,  but  for  such 
authority,  would  constitute  a  nuisance,  the  least  departure  from 
the  manner  in  which  the  work  is  to  be  performed,  or  the  least 
excess  of  authority  in  the  exercise  of  the  power,  will,  to  that  ex- 
tent, amount  to  a  nuisance.  The  greatest  care  must  be  exercised 
in  the  doing  of  such  authorized  act  to  avoid  inflicting  injury  to 
the  person  or  property  of  others.  Thus  when  a  railroad  com- 
pany has  obtained  legal  authority  to  put  its  tracks  upon  a 
public  street,  it  must  so  use  its  privilege  as  to  do  the  least 
possible  injury  to  abutting  property  owners,  and  to  the  gen- 
eral public,  who  have  an  equal  right  upon  the  street.  It  must 
scrupulously  avoid  any  violation  of  the  contract  under  which 
its  presence  is  permitted.  The  use  of  a  street  as  a  switch-yard 
would  not  be  authorized  by  an  authority  to  lay  down  and  operate 
a  track  for  ordinary  railway  purposes.  So  the  unreasonable  stop- 
page of  trains  on  a  street,  or  the  parking  of  its  cars  on  the  street, 
and  any  unnecessary  noise  or  smoke,  would  be  acts  in  excess  of 
the  use  accorded,  and  therefore  illegal  and  a  nuisance.  Mr. 
"Wood,  in  his  work  upon  Railroads,  lays  down  the  sound  and  rea- 
sonable rule,  in  the  following  words:  "It  may  be  stated  as  a 
general  rule  that  whatever  is  authorized  by  statute  within  the 
scope  of  legislative  powers  is  lawful  and  therefore  cannot  be  a 
nuisance.  But  this  must  be  understood  as  subject  to  the  qualifi- 
cation that,  when  an  act  that  would  otherwise  be  a  nuisance  is 
authorized  by  statute,  it  only  ceases  to  be  a  nuisance  so  long  as  it 
is  within  the  scope  of  the  powers  conferred.     If  the  power  con- 


Chap.  IV, J       LIABILITY    WHERE    DUTIES    ARE   TKANSFEliUED.  35 

ferred  is  exceeded,  or  exercised  in  another  or  different  manner 
from  that  prescribed  by  law,  it  is  a  nuisance  as  to  such  excess  and 
difference  in  the  mode  of  its  exercise.'  "Whenever  an  act  is  au- 
thorized to  be  done  in  a  hi<^li\vaj  that  wonhl  otherwise  be  a  nui- 
sance, the  person  or  company  to  wliom  the  power  is  given  is  not 
only  bound  to  exercise  it  strictly  within  the  provisions  of  the  law, 
but  also  with  the  highest  degree  of  care,  to  prevent  injury  to 
persons  or  property  of  those  who  may  be  affected  by  such  acts.'" 

A  person  or  corporation  authorized  by  the  Legislature  to  do  an 
act  will  be  protected  from  all  responsibility,  if  such  act  is  done 
carefully  and  skillfully,  although,  without  legislative  authority, 
the  act  would  have  been  a  nuisance.'' 

What  would  otherwise  be  a  nuisance  in  or  on  a  public  highway 
may  become  a  legal  easement  therein  by  grant  or  prescription, 
subject  to  the  obligation  of  using  it  with  due  care,  so  as  not  to 
permanently  interfere  with  the  use  of  the  highway  or  cause  injury 
to  travelers  upon  it ;  and  in  such  case  the  owner  of  the  easement 
is  only  liable  for  want  of  due  care  and  is  not  an  insurer  against 
injury  to  others  by  its  use." 

Section  lO.—LiahUUy  where  Duties  are  Trans- 
ferred, the  Domg  of  Which  Coiistitates  a 
Kwisanee. 

Where  a  person  has  ordered  a  certain  thing  to  be  done,  the 
doing  of  which  imposes  upon  him  the  duty  of  seeing  that  some- 
thing further  be  done,  lie  cannot  escape  responsibility  for  the 

^MosTder  v.  Utica  &  S.  B.  Co.  8  Barb.  437;  Wellcome  v,  Leeds,  51  Me.  313; 
State  V.  Tapper,  Dudley,  L.  135;  Renwick  v.  Morris,  8  Hill,  631;  Uaghes 
V.  Providence  &  W.  R.  Co.  2  R.  I.  493;  Com.  v.  Nashua  &  L.  B.  Corp.  2 
Gray,  54;  Req.  v.  Eastern  Counties  R.  Co.  2  Q.  B.  569;  State  v.  Morris  & 
E.  B.  Co.  25  N.  J.  L.  437;  Rex  v.  Morris,  1  Barn.  &  Ad.  441. 

'2  Wood,  Railway  Law,  970;  Iron  Mountain  R.  Co.  v.  Bingham,  87  Tenn. 
522,  4  L.  R.  A.  622;  New  York  v.  Bailey,  2  Denio,  440;  Wool/  v.  Beard, 
8  Car.  &  P.  373;  Hawkins  v.  Cooper,  8  Car.  &  P.  473;  Boss  v.  Litton,  5 
Car.  &  P.  407;  Brand  v.  Troy  &  S.  R.  Co.  8  Barb.  369;  Bordentown  & 
S.  A.  Tump.  Co.  V.  Camden  &  A.  R.  &  Transp.  Co.  17  N.  J.  L.  314; 
King  v.  Morris  cfe  E.  R.  Co.  18  N.  J.  Eq.  397;  State  v.  Morris  &  E.  R. 
Co.  25  N.  J.  L.  437;  Rex  v.  Morris,  1  Barn.  &  Ad.  441. 

^Taylor  v.  Baltimore  &  0.  B.  Co.  33  W.  Va.  39;  People  v.  Kerr,  27  N.  Y. 
188;  Leigh  v.  Westerveli,  2  Diier,  618;  Brooks  v.  Boston,  19  Pick.  174. 

*See  Lee  v.  Vacuum  Oil  Co.  54  Hun,  156;  Irvin  v.  Wood,  4  Robt.  138,  and 
cases  last  cited. 


36  IMPOSED    DUTIES,  PEKSONAL.  [Part    I. 

nonperformance  of  tliat  duty  by  showing  that  he  ordered  his 
servant  to  perform  it,  and  his  servant  neglected  to  do  so. 

The  defendant  directed  his  workmen  to  remove  several  sticks 
of  timber  from  one  street  to  another  and  then  to  put  them  in  his 
yard.  His  workmen  removed  them  from  the  street  where  they 
were  and  unloaded  them  upon  the  sidewalk  near  the  curb  in  front 
of  the  yard  and  there  left  them.  Several  days  afterwards  the 
plaintiff,  while  passing  along  the  sidewalk  with  due  care,  after 
dark,  stumbled  over  the  timbers  and  received  an  injury  for  which 
she  sued.  It  is  plain  that  when  defendant's  workmen  unloaded 
his  wagon  in  front  of  his  yard,  they  were  obeying  his  directions, 
and  the  depositing  the  timbers  on  the  edge  of  the  sidewalk,  as  a 
step  in  their  transfer  from  the  wagon  to  the  yard,  was  neither  a 
tortious  nor  a  careless  act  and  was  in  reasonable  pursuance  of 
defendant's  orders.  When,  however,  that  was  done,  it  was  incum- 
bent on  defendant  to  see  that  the  timbers  were  not  left  for  an 
unreasonable  length  of  time  upon  the  public  highway,  and  it  was 
a  duty  resting  upon  defendant  personally,  which  was  never  per- 
formed, and  through  the  nonperformance  of  which  the  plaintiff 
sustained  her  injury.^  The  case  comes  within  the  familiar  rule  that 
when  duties  are  transferred,  the  doing  of  which  creates  a  public 
nuisance  by  unlawfully  obstructing  or  interfering  with  the  free 
use  of  the  highway  or  otherwise,  he  upon  whom  the  duty  was 
by  law  imposed  becomes  answerable  in  damages  to  those  who  suffer 
sj^ecial  injury  therefrom.* 

This  question  generally  arises  where  a  man  is  doing  or  causing 
work  to  be  done  on  his  own  premises,  but  where  he  has  actually 
entered  upon  the  premises  of  another  man  to  take  down  a  parti- 
tion wall,  it  is  hardly  necessary  to  say  that  that  kind  of  work  is, 
necessarily  and  jper  se,  a  nuisance.  In  the  first  place,  it  causes 
inevitable  temporary  disarrangement  and  inconvenience ;  it  im- 
perils the  safety  of  the  adjoining  building  and  very  often  results 
in  its  permanent  injury ;  and  in  a  case  of  that  kind  it  would  seem 
to  be  extremely  unjust  that  the  building  owner  should  get  rid  of 
his  responsibility  by  contracting  with  somebody  else  to  prosecute 

^Carlin  v.  Driscoll,  50  N.  J.  L.  28,  10  Cent.  Rep.  176. 

^Ilarlow  V.  Humiston,  6  Cow.  189;  Runyon  v.  Bordine,  14  N.  J.  L.  472;  Tem- 
perance Hall  Asso.  v.. Giles,  33  N.  J.  L.  260;  McAndrews  v.  Cullerd,  42  N. 
J.  L.  189. 


Chap.  lY.]       LIABILITY    WIIEKE    DUTIES    ARE    TKANSFERRKD.  37 

this  work,  especially  as  his  contractor,  although  a  reputable  and 
skillful  builder,  may  be  pecuniarily  irresponsible.' 

Then,  another  exception  to  the  rule  relieving  the  owner  of  lia- 
bility, would  be  where  a  party  is  under  an  antecedent  obligation 
to  do  a  thing,  or  to  do  a  thing  in  a  particular  way.  In  that  case 
he  cannot  get  rid  of  his  responsibility  by  deputing  it  to  somebody 
else.  That  principle  is  illustrated  in  the  case  of  Baltimore  v. 
G' Donnelly  63  Md.  110.  There  a  contractor  had  been  employed 
to  do  certain  work  on  one  of  the  public  streets.  An  excavation 
had  been  made,  but  it  was  imperfectly  protected,  and  a  person  fell 
into  it  and  was  injured.  In  the  court  of  appeals  the  appellant 
contended  that  inasmuch  as  the  work  was  being  done  by  an  inde- 
pendent contractor  pursuing  an  employment  wholly  independent 
of  the  cit}^,  who  was  free  to  exercise  his  own  judgment  as  to  the 
mode  of  conducting  the  work  and  the  assistants  he  was  to  employ, 
the  rule  of  respondeat  sujjerior  did  not  apply,  and  that  the  con- 
tractor alone  was  responsible,  if  anyone  was.  In  reply,  the  appellee 
admitted  that,  ordinarily,  as  a  condition  precedent  to  holding  a 
superior  amenable,  the  relation  of  master  and  servant  must  be 
shown  to  exist,  and  that  in  the  case  of  a  contractor  employing 
others  to  do  the  work  these  sub-employes  cannot  be  strictly  re- 
garded as  servants  of  the  city ;  but  he  insisted  that  another  rule 
applied  which  fixed  the  responsibility  of  the  city  in  this  case.  That 
rule  he  insisted  is  this  :  That  where  the  person  for  whom  the  work 
is  to  be  done  is  under  a  j)re-existing  obligation  to  have  the  work 
done  in  a  particular  way  or  to  have  certain  precautions  against 
accident  observed,  he  cannot  be  discharged  by  creating  the  rela- 
tion between  himself  and  another  of  employer  and  contractor. 
The  learned  judge  sitting  in  that  case  below  regarded  the  appel- 
lant as  under  such  pre-existing  obligation,  and  so  instructed  the 
jury,  and  that  ruling  was  presented  for  review ;  and  the  court 
atiirmed  the  ruling. 

This  kind  of  case  is  also  distinguishable  from  those  in  which  a 
man  occasions  an  injury  to  a  neighbor  by  work  on  his  own  premises, 
as  by  excavation.  It  seems  to  be  pretty  well  settled  that  a  man 
has  a  right  to  support  his  own  land  by  the  adjoining  land,  and  if 
his  neighbor  digs  down  his  land  so  as  to  deprive  him  of  that  sup- 

^Fowler  v.  Saks  (D.  C.  Mar.  24.  18J0)  7  L.  R.  A.  649. 


38  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

port  so  tliat  his  land  caves  in,  he  has  a  right  of  action,  although 
his  neighbor  may  exercise  all  the  care  and  skill  he  can.  He  is 
absolutely  bound  to  make  good  the  damages.'  But  a  man,  unless 
in  certain  instances,  as  where  he  has  a  clear  right  by  prescription 
or  otherwise,  has  no  right  to  the  support  for  buildings  that  he 
loads  his  land  with  in  that  way.  The  law  then  requires  that  a 
man  who  excavates  his  own  land  at  the  risk  of  liis  neighbor's 
buildings  must  exercise  proper  care  and  skill  f  but  on  the  other 
hand  the  authorities  also  hold  that  even  in  that  case  this  duty  of 
exercising  care  and  skill  cannot  be  deputed  to  a  contractor  so  as 
to  relieve  the  owner  of  responsibility. 

In  the  case  of  Bower  v.  Peate,  L.  R.  1  Q.  B.  Div.  321,  it 
was  held  that  where  one  ordered  work  even  on  his  own  premises 
which  would  naturally  threaten  injurious  consequences  to  his 
neighbor,  that  is,  pulling  down  a  house  and  the  excavation  of 
land,  he  was  bound  to  see  to  the  doing  of  all  that  was  necessary 
to  prevent  it,  and  could  not  relieve  himself  from  that  responsibility 
by  employing  a  contractor. 

In  Tarry  v.  Ashton,  L.  R.  1  Q.  B.  Div.  314,  it  was  held  that 
one  keeping  a  lamp  suspended  in  front  of  his  house  on  a  j^ublic 
highway  was  bound  to  keep  it  in  a  safe  condition,  and  was  not 
protected  from  the  consequences  of  neglect  by  employing  an 
independent  contractor  to  attend  to  it. 

^Moellering  v.  Evans,  121  Ind.  195,  6  L.  R.  A.  449;  Baltimore  &  P.  B.  Co.  v. 
Beaney,  42  Md.  117;  Farrand  v.  Marshall,  21  Barb.  409;  Qilmore\.  Dris- 
coll,  122  Mass.  199;  Thurston  v.  Hancoek,  12  Mass.  220;  Foley  v.  Wyeth, 
2  Allen,  131;  Hwnphries  v.  Brogden,  12  Q.  B.  739;  Brown  v.  Robins,  4 
Hurl.  &  N.  186;  Northern  Transp.  Go.  v.  Chicago,  99  U.  S.  635,  25  L.  ed. 
336;  Smart  Y.  Morton,  5  El.  &  Bl.  30;  Aston  v.  Nolan,  68  Cal.  269;  Oneil 
V.  Harkins,  8  Bush,  650;  Beard  v.  Murphy,  37  Vt.  99,  86  Am.  Dec.  693; 
Mayhew  v.  Burns,  103  Ind.  328;  Quest  v.  Reynolds,  68  111.  478,  18  Am. 
Rep.  570;  Mamer  v.  Lussem,  65  111.  484;  Dyer  v.  St.  Paul,  27  Minn.  457; 
Bushy  V.  Holthaus,  46  Mo.  161;  McGuire  v.  Orant,  25  N.  J.  L.  357,  67 
Am.  Dec.  49;  Shafer  v.  Wilson,  44  Md.  268;  Quincy  v.  Jones,  76  111.  231, 
20  Am.  Rep.  243;  Stevenson  v.  Wallace,  27  Gratt.  77;  Boothby  v.  Andros- 
coggin &  K.  R.  Co.  51  Me.  318;  Charless  v.  Rankin,  22  Mo.  566.  But  be 
may  excavate  to  the  line  of  his  lot  without  subjecting  himself  to  an  ac- 
tion unless  damage  actually  results  to  the  adjacent  soil.  Lasala  v.  Rol- 
brook,  4  Paige,  169,  25  Am.  Dec.  524. 

^Trower  v.  Chadioick,  3  Bing.  N.  C.  334;  Panton  v.  Holland,  17  Johns.  92,  8 
Am.  Dec.  369;  Dodd  v.  Holme,  1  Ad.  &  El.  493;  Haines  v.  Roberts,  7  El. 
&  Bl.  625;  Thurston  v.  Hancock,  12  Mass.  220.  But  this  want  of  care  will 
not  be  presumed  from  the  mere  falling  of  the  building  upon  the  land  to 
the  line  of  which  the  excavation  has  been  made.  Ward  v.  Andrews,  3 
Mo.  App.  275. 


Chap.  lY.]       LIABILITY    WHERE    DUTIES    ARE    TRANSFERRED.  39 

In  Hughes  v.  Percival,  L.  R.  8  App.  Cas.  443,  wliere  the 
defendant  took  down  his  own  house,  in  doing  which  his  contractor 
cut  into  the  party-wall  between  him  and  his  neighbor, — not  even 
attempting  to  remove  the  party-wall, — and  thereby  caused  the 
builder's  house  to  fall  and  drag  down  the  plaintiff's  house,  it  was 
held  that  the  law  cast  the  duty  on  the  defendant  to  see  that  skill 
and  care  were  exercised  in  the  operation,  and  he  could  not  avoid 
the  consequences  by  delegating  the  performance  to  a  third  person.* 
Kor  can  he  avoid  liability  where,  although  without  any  negligent 
act,  he  causes  the  soil  or  buildings  upon  his  own  land  to  fall  upon 
his  neighbor's  land,  as  by  blasting  thereon."  If  that  rule  operates 
where  a  man  is  building  on  his  own  land,  with  how  much  more 
force  ought  it  to  obtain  where  he  is  actually  invading  his  neigh- 
bor's land  and  temporarily  destroying  part  of  his  property  V 

But  on  the  other  hand,  if  the  work,  though  of  a  dangerous 
nature,  may  be  done  in  a  lawful  manner,  and  is  not  in  the  public 
highway,*  and  it  is  let  out  by  contract,  the  owner  of  the  property 
on  which  the  work  is  performed  will  not  be  liable  for  injury  re- 
sulting from  the  want  of  skill  in  the  manner  in  which  the  work  is 
done.'  If  the  injury  results  from  the  nature  of  the  work  itself, 
both  owner  and  contractor  are  liable.* 

1  See  also  Lancaster  v.  Conn.  Mut.  L.  Ins.  Co.  92  Mo.  460,  10  West.  Rep.  409; 
Oettwerth  v.  Hedden,  30  La.  Ann.  30, 

^Wright  v.  ComiyUm,  53  Ind.  337;  Hay  v.  Cohoes  Co.  2  K  Y.  159;  Tremain 
V.  Cohoes  Co.  Id.  163;  Gardner  v.  Heartt,  2  Barb.  165;  Gourdier  v.  Cor- 
mack,  2  E.  D.  Smith,  200. 

^Fowler  v.  Saks  (D.  C.  Mar.  24,  1890)  7  L.  R.  A.  649. 

^Bobbins  v,  Chicago,  71  U.  S.  4  Wall.  657,  18  L.  ed.  427;  Chicago  v.  Robhins, 
67  U.  S.  2  Black,  418,  17  L.  ed.  298. 

^Peachey  v.  Rowland,  13  C.  B.  182,  22  L.  J.  N.  S.  C.  P.  81. 

*Earl  V.  Beadleston,  10  Jones  &  S.  294;  Hundhausen  v.  5(;n(f ,  36  Wis.  29 ; 
Bobbins  v.  Chicaio,  71  U.  S.  4  Wall.  657,  18  L.  ed.  427;  New  Orleans.  M. 
&  C.  R.  Go.  V.  Hanning,  82  U.  S.  15  Wall.  658,  21  L.  ed.  223;  St.  Paul 
Water  Co.  v.  Ware,  83  U.  S.  16  Wall.  576,  21  L.  ed.  488;  District  of  Col- 
umbia V.  Baltimore  &  P.  R.  Go.  1  Mackey,  316,  317;  O'Rourko  v.  Hart,  7 
Bosw.  511,  9  Bosw.  301. 


CHAPTEE  Y. 

NUISANCES,  OWNER  OR  OCCUPIER;  HIGHWAYS. 

Sec.  11.  LiaUUfy  of  Oioner  or  Occiqner  of  Premises  for  Nuisance 
thereon,  and  for  Acts  of  Negligence. 

a.  Owner  or  Tenant  Creating  a  Ntdsance  and  Demising  or 

Underleasing  the  Premises. —  Use  as  a  Nuisance. 

1.  Owner  Creating  or  Purchaser  or  Devisee  Continu- 

ing Nuisance. 

2.  Nuisance  Occurring  during   Term  of  Lease. — 

Covenant  to  Rejxdr. 

b.  Highivays. 

c.  Encroachments  upon  Highways. —  Nuisances. 

d.  Pullic  Nuisances  on  Highzoays. 

e.  Piiblic  Nuisances  ;    Abatement  thereof . 

i.     Injunction  to  Restrain  Nuisances  in  Streets. 

Section  11. — Licthility  of  Owner  or  Occupier  of  Prem- 
ises for  JYuisance  thereon,  and  for  Acts  of 
JVegligence. 

a.  Oivner  or  Tenant  Creating  a  JYuisance  and  De- 
mising or  Underleasing  the  Fi'emises.—  Use  as 
a  Jfwisance. 

Loose  expressions  have  crept  into  some  of  the  decisions  to  the 
effect  tliat  a  public  nuisance  may  be  abated  by  anyone.  No  one 
can  lawfully  abate  a  ]3urely  public  nuisance.  The  correct  rule  is 
stated  by  Chief  Justice  ^\i2iW,  in  Brown  v.  Perkins,  12  Gray,  100, 
that  the  true  theory  is  that  an  individual  may  abate  a  private  nui- 
sance injurious  to  him,  when  he  could  else  bring  an  action ;  and 
also  when  a  common  nuisance  obstructs  his  individual  right,  he 
may  remove  it  to  enable  him  to  enjoy  that  right ;  or  as  in  effect 
ruled  in  Brown  v.  PeGrof,  50  K^.  J.  L.  409,  12  Cent.  Eep.  818, 
he  may  not  volunteer  to  right  a  public  wrong.  Not  until  the 
public  nuisance  become  to  him  a  private  one  may  he  put  it  aside 
without  invoking  the  legal  tribunals. 

If  a  nuisance  is  created,  and  anyone  is  injured  by  the  nuisance 
in  a  particular  manner,  and  not  in  common  with  the  public,  an 


Chap.   Y.]       OWAEK    OR    TENANT    CKEATING    A    NUISANCE.  41 

action  of  negligence  will  usually  lie.'  Generally  speaking  the  per- 
son responsible  for  a  nuisance  is  he  who  is  in  occupation  of  the 
premises  on  which  it  exists.  It  may  be  that  others  also  may  be  lia- 
ble.' It  is  not  the  general  rule  that  an  owner  of  land  is,  as  such,  re- 
sponsible for  any  nuisance  thereon.  It  is  the  occupier,  not  merely 
the  person  who  physically  occupies  the  building,  but  the  person 
who  occupies  it  as  tenant,  having  the  control  of  it,  and  being  as  to 
the  public  under  the  duty  of  keeping  it  in  repair,'  and  he  alone, 
to  whom  such  responsibility  generally  and  prima  facie  attaches.* 

In  Martin  v.  Pettit,  117  N.  Y.  118,  5  L.  R  A.  794,  the  action 
was  for  injuries  occasioned  to  the  plaintiff  by  falling  down  a 
flight  of  steps  leading  from  the  sidewalk  of  the  street  into  the 
cellarway  of  a  building.  The  complaint  charged  that  these  injuries 
were  caused  solely  through  the  negligence  of  the  defendant  in 
permitting  that  part  of  his  premises  to  remain  unprotected  and  in 
an  unsafe  atid  dangerous  condition,  and  the  case  illustrates  the 
different  grounds  of  liability  in  cases  of  negligence  or  nuisance. 
The  proof  established  the  following  state  of  facts :  The  plaintiff 
was  walking  by  the  defendant's  building  on  the  north  side  of 
Thirteenth  Street,  between  Ninth  Avenue  and  Hudson  Street,  in 
the  City  of  New  York,  on  a  Sunday  morning  in  June,  1884. 
AVhen  opposite  the  flight  of  steps,  he  stepped  to  one  side  to- 
pass  by  some  men,  who  were  standing  at  that  point  of  the  side- 
walk. He  attempted  to  pass  between  them  and  the  building,  and 
in  so  doing  fell  down  the  steps.  His  eyesight  was  defective,  and 
that  may  have  accounted  for  his  failure  to  observe  the  cellar 
opening,  but  whether  it  was  or  not  was  held  to  be  immaterial. 
The  building  had  come  into  the  defendant's  possession  within 
the  previous  six  months,  and  covered  the  block.  Around  it  was 
an  open  area  separating  it  from  the  street,  and  the  steps  in  ques- 
tion led  from  the  sidewalk  of  the  street  into  this  area  and  so  into 

^Barnes  v.  Ward,  9  C.  B.  393;  Hounsell  v.  Smyth,  7  C.  B.  N.  S.  731. 

^Gilliland  v.  Chicago  &  A.  B.  Co.  19  Mo.  App.  411;  Hndley  v.  Taylor,  L. 
R.  1  C.  P.  53;  Norton  v.  Wiswall,  26  Barb.  618;  Weston  v.  Tailors  of 
Potterrow,  14  F.  C.  1232;   Morris  v.  Broioer,  Anth.  N.  P.  868. 

^Cunningham  v.  Cambridge  Sav.  Bank,  138  Mass.  480. 

*Kalis  V.  Shattuck,  69  Cal.  593;  Boston  v.  Oray,  144  ]VIass.  53;  Handyside  v. 
Powers,  145  Mass.  123;  Texas  &  P.  R.  Co.  v.  Mangum,  68  Tex.  342;. 
Pretty  v.  Bickmore,  L.  R.  8  C.  P.  401;  Kirby  v.  BoyMon  Market  Asso. 
14  Gray,  249;  Lowell  v.  Spaulding,  4  Cash.  277;  Oakham  v.  IloWrook,  11 
Cush.  299;  Qilliland  v.  Chicago  &  A.  B.  Co.  19  Mo.  App.  411. 


42  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

the  cellar  of  the  building.  This  cellar  had  been  leased  by  the  de- 
fendant, and  the  tenant  was  in  possession  and  actual  occupation. 
The  lease  was  in  writing,  and  gave  no  right  to  defendant  to  use  that 
part  of  the  premises,  or  the  steps  in  question.  The  building  had 
been  undergoing  repairs  and  alterations  at  the  defendant's  hands, 
but  they  had  been  completed  in  this  particular  part,  except  that  cer- 
tain wooden  doors  to  guard  the  entrance  by  this  flight  of  steps  had 
not  yet  been  completed  and  put  up.  Temporarily  the  defendant 
had  furnished  and  put  over  the  opening  an  iron  grating,  weigh- 
ing some  one  hundred  fifty  pounds,  which  extended  from  the 
upper  step  of  the  flight  to  the  wall  of  the  building,  at  an  angle. 
In  order  to  gain  access  to  the  tenant's  cellar,  this  iron  work  had 
to  be  lifted  up  and  removed.  The  flight  of  steps  was  an  ordinary 
one,  and  had  been  there  for  years.  A  watchman  was  employed 
by  the  defendant  to  watch  the  outside  of  the  building,  and  he  was 
examined  in  behalf  of  the  plaintiff.  His  instructions  were,  among 
other  things,  to  see  that  this  iron  cover  to  the  cellarway  was  kept 
in  place.  On  the  morning  in  question  it  had  been  securely  in 
place,  but  while  the  watchman  was  on  his  round,  and  before  his 
circuit  was  completed,  someone  removed  it,  and  it  was  out  of  place 
when  the  plaintiff  came  by.  This  flight  of  steps  extended  into 
the  sidewalk,  and  beyond  the  railing  of  the  area  about  eighteen 
inches,  but  this  feature  was  not  considered  as  involving  any  par- 
ticular consequences.  The  complaint  did  not  charge  the  defendant 
with  maintaining  a  nuisance,  and  the  trial  did  not  proceed  upon 
any  such  theory  of  liability.  In  fact  the  judge  who  presided  at  the 
trial  charged  the  jury  that  the  plaintiff  had  chosen  to  base  his 
action  upon  the  charge  of  direct  negligence,  and  not  upon  that  of 
maintaining  or  continuing  a  public  nuisance ;  and  he  left  it  to  the 
jury  to  say  whether  the  accident  was  caused  exclusively  by  the 
negligence  of  the  defendant,  or  by  those  who  were  acting  for  him. 
In  this  the  plaintiff  acquiesced.  I^o  cause  of  action  arises  against 
the  defendant  for  negligence,  unless  he  has  violated  some  legal 
duty  resting  upon  him  to  exercise  care  with  respect  to  the  use  or 
•enjoyment  of  his  property,  and  it  is  said  that  it  does  not  appear 
that  he  could  have  acted  any  more  carefully  or  prudently  to- 
wards preventing  such  an  accident,  under  the- circumstances,  as 
he  was  not  in  possession  of  the  premises  and   had  no  control 


Chap.  Y.]       OWNER    OK    TENANT    CREATING    A    NUISANCE. 


43 


over  tliem.  He  did  undertake  to  watch  the  outside  of  the  build- 
ing, and  in  performance  of  that  undertaking  placed  a  substantial 
iron  grating  over  the  cellar  entrance,  of  such  a  nature  that  to 
enter  one  had  to  lift  it  up  and  -  to  one  side ;  and  a  watchman 
was  on  duty  day  and  night  to  see  that  the  grating  was  in  its 
proper  place.  The  employment  of  a  watchman  devolved  no 
greater  responsibilities  upon  the  owner  than  he  was  already 
under  in  legal  contemplation.  The  watchman's  duties  were 
not  those  of  a  janitor  and  had  no  relation  to  the  mainten- 
ance or  care  of  the  building,  nor  further  than  as  testified  to. 
He  policed  the  outside  of  the  building  and  he  was  instructed  to 
watch  this  temporary  covering  to  the  tenant's  cellar  entrance. 
This  covering  was  removed  when  the  watchman's  back  was 
turned  and  he  was  on  his  round.  The  defendant  did  not  author- 
ize and  did  not  know  of  its  removal  nor  did  he  have  any  notice 
of  it,  and,  of  course,  could  have  had  none,  for  it  was  suddenly 
done.  It  is  therefore  thought  reasonable  to  presume  that  it  was 
taken  up  by  the  occupant,  or  by  one  of  his  servants;  that  if 
the  cover  had  remained  as  it  was  through  the  night  and  in  the 
morning  previous  to  the  time  of  this  occurrence  the  accident 
could  not  have  happened  ;  and,  as  matter  of  law,  the  defendant 
was  not  liable  for  the  consequences  to  a  stranger  of  the  wanton  or 
careless  act  of  some  other  person  not  in  his  employ.  As  he  was 
shown  to  have  done  all  that  a  careful  man  could  have  done  to 
guard  the  approach  to  the  tenant's  premises,  pending  the  comple- 
tion of  the  permanent  doors  which  he  was  to  furnish,  and  the 
occurrence  was  one  which  might  as  well  have  happened  had 
the  permanent  doors  been  on  and  the  tenant,  or  his  servant,  had 
left  them  open,  the  court  declare  from  the  facts  that  there  is  ab- 
solutely nothing  to  show  that  any  more  effective  device  could 
have  been  adopted  under  the  circumstances  of  the  case,  and 
that  the  closest  sifting  of  the  evidence  leaves  no  residuum  out 
of  which  the  jury  could  fairly  extract  any  inference  of  neglect  on 
the  defendant's  part.  It  is  determined,  therefore,  that  this  is  a 
case  where  the  law  can  grant  no  relief  to  the  plaintiff  against  the 
defendant ;  for  the  only  ground  is,  in  reality,  that  he  is  the  owner 
of  the  premises,  and  in  all  cases  where  it  is  sought  to  hold  the 
owner    of   property  liable  for  injuries  occurring  to  a  stranger, 


44  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

on  the  ground  of  negligence,  there  must  be  evidence  in  tlie  case 
that  he  was  guilty  of  some  act  of  omission  or  commission,  froiri 
which  a  jury  might  reasonably  infer  fault  on  his  part,  and  nothing 
less  than  that  will  satisfy  the  demands  of  the  rule  of  law  in  such 
cases.  The  law,  it  is  declared,  is  reasonable,  and  does  not  demand  of 
an  owner  of  property  more  than  the  exercise  of  ordinary  care  with 
respecL"  to  the  rights  of  third  persons.  A  reference  to  such  recent 
cases  as  Wolf  v.  Kilpatrich,  101  K  T.  146,  2  Cent.  Kep.  81;  Ed- 
wards V.  New  York  &  H.  R.  Co.  98  N.  Y.  245, — and  many  others, 
will  show  that  it  would  be  a  violation  of  well-established  rules  of 
law  to  allow  juries  to  determine  upon  mere  surmise  and  conjecture 
as  to  the  existence  of  negligence  on  the  part  of  a  defendant.  The 
evidence  must  fix  or  tend  to  fix  upon  a  defendant,  in  such  cases, 
some  personal  fault,  or  its  equivalent,  to  warrant  a  submission  of 
the  question  of  liability  to  the  jury. 

It  is  frequently  said  that  where  the  owner  leases  premises  which 
are  a  nuisance,  or  must  in  the  nature  of  things  become  so  hj  their 
user,  and  receives  rent,  then,  whether  in  or  out  of  possession,  he  is 
liable.'  But  it  will  be  found  that  all  or  nearly  all  the  cases  in 
which  this  has  been  said  are  cases  in  which  at  the  time  of  the  de- 
mise the  landlord  had  notice  of  the  nuisance.  In  Conhocton  Stone 
Road  V.  Buffalo,  W.  T.  c&  K  R.  Co.,  51  N.Y.  573,  the  defendant 
demised  the  premises  with  the  nuisance  thereon,  and  yet  it  was 
held  not  to  be  liable  because  there  was  no  proof  of  notice.  One 
creating  a  nuisance  on  his  own  premises  cannot  escape  the  liability 
by  demising  the  premises,"  because,  before  his  assignment  over,  he 
was  liable  for  all  the  consequential  damages  and  could  not  discharge 
himself  by  granting  it  over.^  This  doctrine  is  reconciled  in  the 
proposition  that  where  the  injury  is  the  result  of  the  misfeasance 
or  nonfeasance  of  the  lessor,  the  party  suffering  damage  may  sue 
him.* 

^Albert  v.  State,  66  Md.  325,  6  Cent.  Rep.  447;  Swords  v.  Edgar,  59  N.  Y. 

28;  Joyce  v.  Martin,  15  R.  I.  558,  4  New  Eng.  Rep.   797;  Davenport  v. 

Riickman,  37  N.  Y.  568;  Dalay  v.  Savage.  145  Mass.  38,  4  New  Eng.  Rep. 

863;  Oodley  v.  Hagerty,  20  Pa.  387;  Carson  y.  Godley,2Q  Pa.  Ill;  Staple 

V.  Spring,  10  Mass.  72;  Bouse  v.  Metcalf,   27  Conn,   631;    Anderson  y. 

Dickie,  26  How.  Pr.  105. 
^Rankin  v.  Ingicersen,  49  N.  J.  L.  481,  8  Cent.  Rep.  371;  Rosewell  v.  Prior ^ 

2  fSalk.  460,  1  Ld.  Raym.  713. 
^Rosicell  V.  Prior,  12  Mod.  639. 
*Todd  V.  Fliglit,  9  C.  B.  N.  S.  377. 


Chaf).  Y.]       OWNER    OB   TENANT    CKEATING    A    NUISANCE.  45 

In  Nelson  v.  Liverpool  Brewery  Co.,  L.  R.  2  C.  P.  Div.  311,  it 
is  expressly  said  that  if  tlie  landlord  lets  premises  in  a  rninous 
condition,  he  is  liable  to  strangers,  and  in  Saltonstall  v.  Banl-er, 
8  Gray,  195,  197,  the  decisions  in  Rich  v.  Basterfield,  4  C.  B. 
783,  and  in  Bex  v.  Pedltj,  1  Ad.  &  El.  822,  are  approved,  and  it 
is  said  that  if  the  nuisance  existed  at  the  time  of  the  demise,  the 
landlord  is  liable.' 

In  Jackson  v.  Arlington  Mills,  137  Mass.  277,  the  landlord 
was  held  liable  for  the  acts  of  his  tenants  in  polluting  the-  water 
of  a  brook  by  discharging  into  it  the  sink  water  from  the  houses 
let,  and  the  reason  given  was  that  the  houses  let  were  intended  to 
be  used  by  the  tenants  in  the  manner  in  which  they  were  used, 
and  that  if  the  landlord  did  not  retain  the  control  of  the  water 
used  by  the  tenants,  he  had,  by  the  letting,  authorized  the  use 
which  the  tenants  made  of  the  water.' 

In  Walsh  v.  Mead,  8  Hun,  387,  Daniels,  J.,  said  :  "  The  erec- 
tion and  maintenance  of  a  nuisance  is  a  wrong,  and  by  leasing  the 
building  affected  by  it  to  another  person,  the  owner  continues  it, 
and  stipulates  for  the  enjoyment  of  the  profit  from  it." 

Where  the  tenant  created  the  nuisance,  and  underleased,  he  is 
held  Hable,  as  his  transfer  confirms  the  continuance  of  the  nui- 
sance.^ So  where  an  owner  lets  premises  in  a  ruinous  and  danger- 
ous condition."  This  rule  was  established  in  the  leading  case  of 
Rosewell  v.  Prior,  2  Salk.  460,  1  Ld.  Raym.  713.  That  was  an 
action  against  one  who  had  erected  a  shed  which  stopped  plaintiff's 
ancient  lights.  There  had  been  a  recovery  against  him  for  the 
erection,  and  this  action  was  for  a  continuance  of  the  nuisance. 
The  erection  was  by  a  tenant  for  years,  who  had  afterward  made 
an  under-lease  to  one  S.  The  question  was  whether,  after  a  recov- 
ery against  the  first  tenant  for  years  for  the  erection,  an  action 
would  lie  against  him  for  the  continuance  after  he  had  made  an 
underlease.  It  was  held  that  the  action  would  lie,  upon  the 
ground  that  defendant  had  transferred  the  premises  with  the  origi- 
nal wrong,  and  this  demise  atiirmed  the  continuance  of  it.     It  was 

'See  Todd  v.  Flight,  9  C.  B.  N.  S.  377. 

«See  also  Owings  v.  Jones,  9  Md.  108;  Peoria  v.  Simpson,  110  111.  294,  300; 

Irvine  v.  Wood,  51  N.  Y.  224;  Durant  v.  Palmer,  29  N.  J.  L.  544. 
^Rosewell  v.  Prior,  2  Salk.  460. 
*Todd  V.  Flight,  9  C.  B.  N.  S.  377. 


46  IMPOSED    DUTIES,  PERSONAL.  [Part  I. 

also  licld  that  the  action  would  lie  against  either  tenant,  at  plain- 
tiff's election. 

There  are  numerous  authorities  which  hold  that  a  redemise  of 
premises  in  an  unsafe  condition  imposes  upon  the  landlord  as  full 
a  liability  to  third  persons  injured  thereon  as  an  original  lease  of 
them  in  such  condition.* 

In  Todd  V.  Flight,  9  C.  B.  K.  S.  377,  it  was  held  that  an  action 
lies  against  the  owner  of  premises  who  lets  them  to  a  tenant  in  a 
ruinous  and  dangerous  condition,  and  who  causes  or  permits  them 
to  remain  so  until  by  reason  of  the  want  of  reparation  they  fall 
upon  and  injure  the  house  of  an  adjoining  owner. 

In  Nelson  v.  Liverpool  Brewery  Co.,  L.  R.  2  C.  P.  Div.  311, 
it  was  held  that  a  landlord  is  liable  for  an  injury  to  a  stranger  by 
the  defective  repair  of  demised  premises  only  when  he  has  con- 
tracted with  the  tenant  to  repair,  or  where  he  has  been  guilty  of 
misfeasance,  as,  for  instance,  in  letting  the  premises  in  a  ruinous 
condition  ;  and  that  in  all  other  cases  he  is  exempt  from  responsi- 
bility for  accidents  happening  to  strangers  during  the  tenancy. 
Lopes,  e/i,  writing  the  opinion  said :  "  We  think  there  are  only 
two  ways  in  which  landlords  or  owners  can  be  made  liable  in  the 
case  of  injury  to  a  stranger  by  the  defective  repairs  of  pi-emises 
let  to  a  tenant,  the  occupier,  and  the  occupier  alone,  being  prima 
facie  liable :  first,  in  the  case  of  a  contract  by  the  landlord  to  do 
repairs  when  the  tenant  can  sue  him  for  not  repairing ;  secondly, 
in  the  case  of  a  misfeasance  by  the  landlord,  as,  for  instance, 
where  he  lets  the  premises  in  a  ruinous  condition.  In  either  of 
these  cases  we  think  an  action  would  lie  against  the  owner." 

In  "Woodfall's  Landlord  and  Tenant  (13th  ed.),  735,  it  is  said : 
"  As  regards  the  liability  of  landlords  to  third  persons,  it  may  be 
taken  as  a  general  rule  that  the  tenant  and  not  the  landlord  is  lia- 
ble to  third  persons  for  any  accident  or  injury  occasioned  to  them 
by  the  premises  being  in  a  dangerous  condition ;  and  the  only 
exceptions  to  the  rule  appear  to  arise  when  the  landlord  has  either 
(1)  contracted  wnth  the  tenant  to  repair ;  or  (2j  where  he  has  let 
the  premises  in  a  ruinous  condition ;  or  (3)  where  he  has  express- 
ly licensed  the  tenant  to  do  acts  amounting  to  a  nuisance." 

'Taylor,  Land,  and  T.  §  175;  Bigelow,  Lead.  Cas.  in  Torts,  475;  Gandy  v. 
Jubber,  5  Best  &,  S.  78,  485,  10  Jur.  N.  S.  652;  Whalenv.  Gloucester,  6 
Thomp.  &  C.  135,  4  Hun,  24;  State  v.  Williams,  30  N.  J.  L.  113. 


Chap,  y.]       OWNER    OR    TENANT    CREATING    A    NUISANCE.  47 

In  Leonard  v.  Storer^  115  Mass.  86,  the  plaintiff  was  injured 
wliile  passing  along  the  public  street  in  Boston  by  the  falling  of 
snow  and  ice  upon  her  from  a  house  belonging  to  defendant,  but 
leased  bj  him  nearly  twelve  years  before  for  the  term  of  fifteen 
years  to  the  tenant,  who  by  the  tei-ms  of  the  lease  was  "  to  make 
all  needful  and  proper  repairs,  both  external  and  internal."  The 
plaintiff  sought  to  charge  defendant  because  the  roof  was  so  con- 
structed that  the  snow  and  ice  collecting  upon  it  would  naturally 
slide  into  the  street.  It  did  not  appear  that  the  tenant  "  might 
not  have  cleaned  the  roof  by  the  exercise  of  due  care,  or  that  he 
could  not,  by  proper  precautions,  have  prevented  the  accident," 
nor  that  "  any  neglect  of  duty  or  wrongful  act  on  the  part  of  the 
defendant  was  the  cause  of  the  injury ;"  and  the  court  affirmed  the 
judgment  for  defendant.  The  ground  of  the  decision  is  not  very 
clearly  set  forth,  but  it  seemed  that  the  defendant  was  discharged 
because  the  injury  was  attributable  to  the  negligence  of  the  tenant 
instead  of  any  defect  in  the  structure  of  the  house,  or,  if  there  was 
any  defect,  because  it  was  for  the  tenant  alone,  under  the  lease,  to 
remedy  it.  It  will  be  observed  that  the  defendant,  if  charged, 
would  have  been  charged  on  the  ground  that  the  house  when  let 
was  a  public  nuisance,  and  the  case  would  apply  to  the  class  of 
cases  in  which  lessors  are  held  to  respond  in  damages  because  the 
premises  from  which  the  injuries  were  received  were  in  such  a 
state  as  to  be  a  nuisance,  public  or  private,  when  let. 

In  Mellen  v.  Morrill^  126  Mass.  545,  the  defendant  was  the 
owner  of  a  dwelling-house  which  he  let  by  parol  to  the  tenant, 
who  occupied  it  for  a  dwelling-house  and  market.  The  walk  from 
the  street  to  the  door  led  along  an  embankment  and  was  unsafe 
for  the  want  of  a  railing.  The  plaintiff  in  going  along  the  walk 
in  the  night  time,  for  the  purpose  of  settling  an  account  with  the 
tenant,  fell  down  an  embankment  and  was  injured  ;  the  court  held 
that  the  defendant  was  not  liable,  but  that  it  was  the  duty  of  the 
tenant  if  he  usod  the  premises  so  as  impliedly  to  invite  people  to 
visit  them  in  the  night  "to  make  them  safe  by  railing  or  by  light, 
when  they  are  appurtenant."  It  did  not  appear  that  the  defend- 
ant let  the  premises  to  be  used  as  a  market.  Moreover,  it  would 
seem  that  they  might  have  been  safely  used  if  the  tenant  had 
simply  set  out  a  light  or  other  warning.' 

iSee  mch  v.  BasterfieU,  4  C.  B.  784. 


48  IMPOSED    DUTIES,  PEKSONAL.  [Part  I. 

In  Irvine  v.  Wood,  51  N".  T.  224,  the  cause  of  injury  was  a 
coal-liole,  excavated  in  a  city  sidewalk  and  defectively  covered, 
which  was  used  by  lessees  of  the  premises.  The  lessor  did  not 
contest  his  liability.  The  court  held  that  the  lessees  were  liable 
jointly  with  him.  The  court,  in  giving  the  judgment,  said :  "  The 
landlord  rented  the  nuisance  and  took  rent  for  it.  The  tenants 
used  it  and  paid  rent,  and  hence  they  must  all  be  considered  as 
continuing  and  responsible  for  the  nuisance.'" 

A  dock  is  regarded  as  a  species  of  public  highway,  and  for  that 
reason  the  same  rules  apply. ^ 

In  Swords  v.  Edgar,  59  ]^.  Y.  28,  it  was  held  that  the  lessors 
of  a  pier  which  was  in  possession  of  their  lessee,  from  whom 
they  were  receiving  rent  for  it,  were  liable  for  an  injury  received 
by  a  longshoreman  engaged  in  discharging  a  cargo  thereon,  the 
cause  of  the  injury  being  a  dangerous  defect  which  existed  at  the 
date  of  the  demise.  The  pier,  though  private  property,  was  kept 
for  use  by  all  the  vessels  which  might  come  to  it  for  the  purpose 
-of  loading  and  unloading,  and  the  court  held  that  the  longshore- 
man, being  in  the  employ  of  such  vessel,  was  to  be  regarded  as 
there  by  invitation,  and  therefore  was  entitled  to  the  protection 
which  would  result  from  having  the  pier  in  an  ordinary  state  of 
security  and  strength.  The  court  also  held  that,  though  the  lease 
contained  a  covenant  binding  the  lessee  to  keep  the  pier  in  good 
order  and  repair,  the  lessors  were  not  exonerated  therefrom,  dis- 
senting from  the  result  reached  in  Pretty  v.  Bickmore,  L.  R.  8  C. 
P.  401." 

Albert  v.  State,  ^'6  Md.  325,  6  Cent.  Rep.  M7,  was  an  action 
brought  by  or  for  a  minor  for  damages  sustained  by  him  by  the 
death  of  his  parents,  who  were  drowned  by  reason  of  the  defec- 
tiveness of  a  wharf  in  the  occupation  of  the  defendant's  tenant. 
The  instruction  given  on  trial  to  the  jury  was  that  "if  the  jnry 
found  that  the  defendant  was  the  owner  of  the  wharf  and  that  he 

»Citing  Bex  v.  Pedly,  1  Ad.  &  El.  823 ;  Anderson  v.  Bkkie,  26  How.  Pr. 
105  ;  People  v.  Erwin,  4  Denio,  129.  See  also  Rex  v,  Moore,  3  Barn.  & 
Ad.  184. 

^Edwards  v.  Mw  York  &  H.  B.  Co.  98  N.  Y.  245. 

^See  also  Rankin  v.  Ingwersen,  49  N.  J,  L.  481,  8  Cent.  Eep.  371;  Nel- 
son V.  Liverpool  Brewery  Co.  L.  R.  2  C.  P.  Div.  311;  Waggoner  v .  Jer- 
maine,  3  Denio,  306;  McCallumY.  Hutchinson,  7  U.  C.  C.  P.  508;  Durant 
V.  Palmer,  29  N.  J.  L.  544. 


Chap,  v.]       OWXEK    OR    TENANT    CREATING    A    NUISANCE.  49 

rented  it  out  to  the  tenant,  and  that  at  tlie  time  of  tlie  rentuig  the 
wharf  was  unsafe,  and  the  defendant  knew,  or  by  tlie  exercise  of 
reasonable  diligence  could  have  known,  of  its  unsafe  condition,  and 
the  accident  happened  in  consequence  of  such  condition,  then  the 
plaintiff  was  entitled  to  recover."  On  appeal,  this  instruction  was 
approved  by  the  court  as  correct. 

Many  other  authorities  sustain  the  general  propositions  stated.' 
A  distinction  has  been  taken  between  the  liability  of  the  land- 
lord and  tliat  of  the  tenant ;  and  the  former  has  been  restricted  to 
that  w^hich  is  a  nuisance  in  its  very  essence  and  nature  at  the  time 
of  letting,  and  not  something  merely  capable  of  being  rendered  a 
nuisance  by  the  tenant.''  But  there  are  cases  which  affirm  the 
lessor's  lia])ility  for  a  nuisance  which  was  a  necessary,  contemjilated 
or  probable  result  of  the  use  of  the  thing  leased  for  the  purpose 
for  which  it  was  leased.^  In  some  cases  a  knowledge,  on  the  part 
of  the  lessor,  of  the  existence  of  the  nuisance  at  the  time  of  the 
■demise  is  held  to  be  an  essential  element  of  his  liability.'' 

A  different  view  was  expressed  by  the  Court  of  Queen's  Bench 
in  Gandij  v.  Juhber,  5  Best  &  S.  87 ;  but  as  the  plaintiff  in  that 
case,  upon  an  error  in  the  Exchequer  Chamber,  accepted  a  s^ei^Jj^ro- 
cessus  on  the  recommendation  of  the  court,  the  weight  of  that 
case  may  be  considered  lessened.  If  such  knowledge  is  an  essen- 
tial element  of  the  landlord's  liability,  the  cases  of  Pretty  v. 
Bickmore,  L.  R.  8  C.  P.  401,  and  Gwinnell  v.  Earner^  L.  R.  10  C. 

^Nehon  v.  Liverpool  Brexoery  Co.  L  R.  2  C.  P.  Div.  311;  Knauns  v. 
Bi'ua,  107  Pa.  85;  Fowy.  Roberts,  108  Pa.  489;  Cunningham  y.  Cambridge 
Sav.  Bank,  138  Mass.  480;  Dalay  v.  Savage,  145  Mass.  38,  4  New  Eng. 
Rep.  8G3;  Nugent  v.  Bodon,  C.  c6  M.  R.  'Co.  80  Me.  62,  77,  5  New  Eng. 
Rep.  865;  Albert  v.  State,  66  Md.  335,  6  Cent.  Rep.  447;  Sicords  v.  Edqar, 
59  N.  Y.  28:  Edwards  v.  New  York  &  H.  R.  Co.  98  N.  Y.  247;  Walsh  v. 
Mead,  8  Hun,  387. 

^Gandy  v.  Jubber,  5  Best  &  S.  87;  Loioell  v.  Spaulding,  4  Gush.  277;  Stetcart 
V.  Pitnam,  137  Mass.  403. 

^missci/  V.  Ryan,  64  Md.  426;  Riley  v.  Simpson,  83  Cal.  217,  7  L.  R.  A. 
622;  Kalis  v.  Shattuck,  69  Cal.  593;  .lessen  v.  Sweir/ert,  66  Cal.  182;  Rr^for 
V.  Bnckhart,  3  Hill,  193;  Mullen  v.  St.  John,  57  N.  Y.  567;  Wood,  Xiiis. 
Sg  295,  676;  Fish  v.  Dodge,  4  Denio,  311;  Rex  v.  Pedhj,  1  Ad.  &  El.  822; 
House  V.  Metcalf,  27  Conn.  631;  Wood,  Land,  and  T.  fcj  639,  and  cases  in 
notes.  The  following  cases  illustrate  the  principle:  Nelson  v.  Liverpool 
Breicery  Co.  L.  R.  2  C.  P.  Div.  311 ;  S/aple  v.  Spring,  10  JVIass.  72;  Sallon- 
stall  Y.  Banker,  8  Gray,  195;  Stcords  v.  Edgar,  59  N.  Y.  28;  Waggoner  v. 
Jermaine,  3  Denio,  806;  McCallum  v.  Hutchinson,  7  U.  C.  C.  P.  508; 
Durant  v.  Palmer,  29  N,  J.  L.  544. 

*Qwinnell  v.  Earner,  L.  R.  10  C.  P.  658;  State  v.  Williams,  30  N.  J.  L.  102. 
4 


50  IMPOSED   DUTIES,  PEESONAL.  [Part  I. 

P.  658,  may  be  reconciled  with  the  other  cases.  In  the  latter  case 
it  appears  that  the  lessor  demised  in  ignorance  of  the  defect.  In 
the  former  case  the  same  ignorance  may  be  inferred. 

In  Rankin  v.  Ingwersen,  42  N.  J.  L.  481,  8  Cent.  Rep.  371,  it 
was  said  by  Magie,  J.:  "  Nor  do  I  perceive  how  the  liability  of 
the  landlord  in  such  cases  will  be  diminished  by  the  fact  that  he 
renewed  the  tenant's  lease  without  retaking  actual  possession. 
Such  a  conclusion  would  be  opposed  to  the  principles  creating  and 
governing  his  liability.  If  a  nuisance  is  created  during  a  term 
already  existing,  no  liability  falls  on  the  landlord  pending  that 
term,  for  the  reason  that  he  has  no  legal  means  of  abating  the 
nuisance.  He  cannot  enter  upon  his  tenant's  possession  for  that 
purpose,  and  would  be  a  trespasser  if  he  did  so.  But  when  the 
term  expires,  his  right  of  entry  and  power  to  abate  at  once  arise, 
and  for  that  reason  a  liability  commences.  If  he  declines  to  re- 
enter and  abate  the  nuisance,  and  relets  the  premises,  the  liability 
which  arose  at  the  termination  of  the  term  will  be  neither  dis- 
charged nor  evaded.  The  test  of  his  liability  in  such  case  is  his- 
power  to  have  remedied  the  wrong.  If  he  has,  but  fails  to  exer- 
cise, such  power,  his  liability  remains.  The  cases  seem  to  be 
uniform  in  this  view.'" 

In  Gandy  v.  Jubher,  5  Best  &  S.  87,  the  landlord  was  held 
liable  in  case  of  a  tenancy  from  year  to  year,  which  he  could  have 
terminated  by  notice,  which  he  failed  to  give. 

The  liability  of  lessors  to  respond  in  damages  is  because  the 
premises  from  which  the  injuries  were  received,  let  by  them  for 
a  rent  or  profit,  were  let  to  be  used  for  purposes  for  which  they 
were  not  fit  or  safe  to  be  used,  and  because  the  lessors  knew  when 
they  let  them  the  purpose  for  which  they  were  to  be  used,  and  also 
knew  or  ought  to  have  known  that  they  were  not  fit  or  safe  to  be 
so  used,  the  liability  being  of  special  application  where  the  prem- 
ises were  let  to  be  used  for  public  resort  or  entertainment,  or  for 
other  public  or  quasi  public  purj)Oses ;  and  indeed  a  disposition 
appears  to  exist  on  the  part  of  some  judges  to  limit  the  lessor's 
liability,  except  for  nuisances  and  cases  in  which  the  injuries  com- 
plained of  are  attributable  to  defective  or  dangerous  premises  let 

'See  Whnlen  v.   Gloucester,  4  Hun,  24;  Rex  v.  Pedly,  1  Ad.  &  El.  832;  Rich 
y.  Basterfield,  4C.  B.  782;  Clancy  v.  Byrne,  56  N.  Y.  129. 


Chap,  y.]       OWNER    OR    TENANT    CREATING    A    NUISANCE,  51 

to  be  so  used/  lie  M'ill  be  liable  if  he  demises  premises  to  be 
used  as  a  nuisance,  or  for  a  business,  or  in  a  way,  so  that  they  will 
necessarily  become  a  nuisance,^  The  owners  of  a  leased  building 
who  consent  to  or  permit  the  act  which  causes  a  building  to  become 
a  nuisance,  as  where  they  agree  to  the  erection  of  an  awning  by 
the  tenants,  and  contribute  lumber  for  its  construction,  are  liable 
to  a  person  injured  by  the  falling  of  the  awning  and  a  portion  of 
the  wall  to  which  it  was  attached,  because  the  wall  was  not  of  suffi- 
cient strength  to  support  the  burden.^ 

In  Godley  v.  IIa(/eH;/,  20  Pa.  887,  approved  in  Carson  v.  God- 
ley,  26  Pa.  Ill,  it  was  held  that  where  the  owner  of  real  estate 
erected  thereon  a  row  of  buildings  with  the  intention  of  rentino; 
them  to  the  government  as  bonded  warehouses  and  with  the  knowl- 
edge that  they  would  be  obliged  as  such  to  stand  very  great 
weight,  he  was  liable  in  damages  for  an  injury  to  a  person  em- 
ployed in  one  of  the  storehouses  occasioned  by  its  fall  after  having 
been  so  rented,  though  the  immediate  cause  of  the  accident  was 
the  storage  of  heavy  merchandise  in  the  upper  story,  it  ap]:)earing 
that  the  building  had  been  constructed  on  a  defective  plan  and  of 
insufficient  strength.* 

But  it  was  held  in  Texas  &  P.  R.  Co.  v.  Mangum,  68  Tex, 
342,  that  a  railway  company  is  not  liable  for  injuries  resulting 
from  a  defective  construction  of  a  hotel  on  its  land,  where  it  was 
built,  owned  and  kept  by  its  lessee. 

In  Oicings  v.  Jones,  9  Md.  108,  the  plaintiff  sued  for  damages 
for  injuries  received  by  falling  into  a  vault  appertaining  to  the 

^Godley  v.  Raqerty,  20  Pa.  387,  affirmed  ia  Carson  v.  Godley,  26  Pa.  Ill  ; 

SiDords  V.  Edgm\  59  N.  Y.  28  ;  Albert  v.  State,  66  Md.  325,  6  Cent.  Rep. 

447.     And  within  the  same  class  of  cases  is  that  of  Joyce  v.  Martin,  15 

R  I.  558,  4  New  Eng.  Rep.  796. 
^Emsey  v.  Byan,  64  Md.  426;  Riley  v.  Simpson,  83  Cal.  217,  7  L.  R.  A.  622; 

Kalis  V.  Shattuck,  69  Cal.  593;  Jessen  v.  Sioeirjert,  66  Cal.  182;  Rector  v. 

Buckhart,  3  Hill,   193;  Mullen  v.  St.  John,  57  N.  Y.  567;  Wood,  Nuis. 

§§  295,  676;  Fish  v.  Dodge,  4  Denio,  311;  Rex  v.  Pedly,  1  Ad.  &  El.  822; 

House  V.  Meicalf,  27«Conn.  631;  Wood,  Land,  and  T.  §  639,  and  cases  in 

notes.     The  following  cases  illustrate  the  principle:     Nelson  y.  Liverpool 

Brewery  Co.  L.  R.  2  C.  P.  Div.  311;  Staple  v.  Spring,  10  Mass.  72;   Saltan- 

stall  V.  Banker,  8  Gray,  195;  Swords  v.  Edgar,  59  N.  Y.  28;  Waggoner  ^. 

Jermaine,  3  Denio,  306;   McCallum  v,  Hutchinson,  7  U.  C.  C.  P.  508; 

JDurant  v.  Palmer,  29  N.  J.  L.  544. 
^Riley  v.  Simpson,  83  Cal.  217,  7  L.  R.  A.  622;  Kalisv.  Shattuck,  69  Cal.  593. 
*See  also,   as  illustrating  the  principle,  Saltonstall  v.  Banker,   8  Gray,  195; 

Waggoner  v.  Jermaine,  3  Denio,  306;  McCallum  v.  llulchinson,  7  U.  C. 

C.  P.  508;  Durant  v.  Palmer,  29  N.  J.  L.  544. 


52  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

property  of  the  defendant  and  bnilt  under  the  sidewalk  of  a  pub- 
lic street.  It  was  shown  in  defense  that  the  property  had  been 
leased  by  the  defendant  for  a  term  of  seven  years,  the  lessee  agree- 
ino-  to  pay  an  annual  rent  therefor,  but  not  in  any  manner  stipulat- 
ing to  keep  the  demised  premises  in  rej)air,  nor  to  have  the  sink 
kept  clean,  and  that  the  lessee  was  in  possession  at  the  time  of  tlie 
accident.  But  the  court  held  that  the  defendant  was  not  relieved 
from  liability  if  the  vault  was  so  constructed  as  to  be  unsafe  for 
passers-by  when  the  premises  were  let,  or  as  to  be  liable  to  become 
unsafe  in  the  necessary  opening  for  the  purpose  of  cleaning  it. 
The  court,  in  giving  its  opinion,  laid  down  the  following  proposi- 
tions, relying  on  the  authority  of  Rich  v^  Basterfield,  4  C.  B.  784, 
and  the  cases  cited  there,  to-wit:  (1)  when  property  is  demised, 
and  at  the  time  of  the  demise  is  not  a  nuisance,  but  becomes  so 
only  ])y  act  of  the  tenant  while  in  his  possession,  and  an  injury 
happens  during  such  possession,  the  owner  is  not  liable;'  (2)  but 
where  the  owner  leases  premises  which  are  a  nuisance,  or  must 
in  the  nature  of  things  become  so  by  their  use,  and  receives  rent, 
then,  whether  in  or  out  of  possession,  he  is  liable  for  injuries  re- 
sulting from  such  nuisance.      I^uraerous  cases  support  this  view." 

The  duty  of  keej)ing  a  sidewalk  safe  can  only  be  transferred  to 
a  tenant  by  a  complete  transfer  of  the  possession  of  the  premises, 
which  leaves  no  power  of  control  in  the  owner.' 

The  landlord  of  an  apartment  house,  retaining  the  control  of 
the  halls  and  coal-vaults,  is  liable  for  an  injury  to  a  passer-by  from 

*To  this  effect  see  Joyce  v.  Martin,  15  R.  I.  558,  4  New  Eng.  Rep.  797; 
Banldn  v.  Ingicersen,  49  N.  J.  L.  481,  8  Cent.  Rep.  371;  Ditchett  v.  Spuyteyi 
Duyvil  &  P.  M.  R.  Co.  67  N.  Y.  425;  Shindelbeck  v.  3{oon,  32  Ohio  St.  264; 
Wolf  V.  Kilpatrick,  101  N.  Y.  146,  2  Cent.  Rep.  82;. Bt/an  v.  Wilson,  87  N. 
Y.  471;  Harris  v.  Co?ien,  50  Mich.  324;  St.  Louis  v.  Kaime,  2  Mo.  App.  66. 

^Boseicell  \.  Prior,  2  Salk.  459,  12  Mod.  635-639;  Rex  v.  Pedly,  1  Ad.  &  El. 
822;  Rex  v.  Moore,  3  Barn.  &  Ad.  184;  Todd  v.  Flight,  9  C.  B.  N.  S.  377; 
Nelson  V.  Liverpool  Brewery  Go.  L.  R,  2  C.  P.  Div.  311;  Pretty  v.  Bick- 
more,  L.  R.  8  C.  P.  401.  In  the  hist  named  case  the  lessor  was  held  to 
be  exenipt  from  liability  because  lie  let  the  premises  by  lease  in  which 
the  tenant  covenanted  to  keep  them  in  repair.  See  also  the  following 
American  cases:  Staple  v.  Spring,  10  Maes.  72;  Fish  v.  Bodge,  4  Deuio, 
311;  Bavenport  v.  Ruckman,  37  N.  Y.  568;  Anderson  v.  Bickie,  26  How. 
Pr.  105;  House  v.  Metcalf,  27  Conn.  631,  and  cases  cited  to  this  point, 
supra. 

^Jennings  v.  Van  Schaick,  108  N.  Y.  530,  11  Cent.  Rep.  317.  See  McOuire 
V.  Spence,  91  N.  Y.  305;  Bvinev.  Wood,  51  JST.  Y.  224;  Swords  v.  Edgar,  59 
N.  Y.  34;  Clifford  v.  Bam,  81  N.  Y.  56;  Cougreve  v.  Smith,  18  N.  Y.  79; 
Anderson  v.  Bickie,  26  How.  Pr.  105;  Rex  v.  Pedly,  1  Ad.  &  El.  822 ; 
People  V.  Erwin,  4  Denio,  129. 


Chap,    v.]  PUKCHASER     CONTINUING    NUISANCE.  53 

falling  into  an  unguarded  coal-hole  in  the  sidewalk.'  Where  the 
opening  in  the  sidewalk  was  made  and  left  uncovered  by  the 
landlord,  he  was  held  liable.' 

In  Edwards  v.  New  York  &  H.  R.  Co.,  98  N.  Y.  245,  the 
plaintiff  sued  for  injury  by  the  falling  of  a  gallery  in  a  building, 
and  it  was  held  that  the  lessors  were  not  liable,  there  being  no  evi- 
dence that  they  knew  or  had  reason  to  know  that  the  gallery 
would  be  used  in  such  a  way  as  to  endanger  its  security.  The 
court,  however,  in  delivering  the  judgment,  said  that  if  one  builds 
a  house  for  public  amusements  or  entertainments  and  lets  it  for 
those  purposes,  knowing  that  it  is  so  imperfectly  or  carelessly  built 
that  it  is  liable  to  go  to  pieces  in  the  ordinary  use  for  which  it  is 
designed,  he  is  liable  to  the  persons  injured  through  his  careless- 
ness. In  that  case  there  was  a  vigorous  dissenting  opinion  from 
the  result  reached,  arguing  that  the  lessors  ought  to  be  held  to  re- 
sponsibility in  damages,  united  in  by  Ruger,  Ch.  J.,  and  Danforth 
and  Finch,  JJ^ 

1.  Owner  Creating  or  Purchaser  or  Devisee  Con- 
tinuing JSTuisance. 

But  the  owner  is  responsible  if  he  creates  a  nuisance  and  main- 
tains it.  "Whether  a  building  has  been  made  unsafe  by  the  agency 
of  time  or  the  acts  of  trespassers  is  immaterial  as  affecting  the  own- 
er's liability,  where  it  was  within  his  power  to  prevent  such  con- 
dition, as,  in  either  event,  it  is  the  owner's  duty  to  keep  his  build- 
ing in  a  safe  condition." 

In  Silvers  v.  Nerdlinger,  30  Ind.  53,  it  was  held  that  the  owner 
of  a  lot  in  a  citj^,  having  by  permission  of  the  city  authorities 
caused  an  excavation  to  be  made  in  a  sidewalk  along  which  people 
are  accustomed  to  pass,  for  the  purpose  of  constructing  an  area  by 

^Jennings  v.  Van  Sehair.k,  108  N.  Y.  530,  11  Cent.  Rep.  317.  So  a  purchaser 
would  be  liable  if  be  suffered  the  tenant,  not  obliged  to  repair,  to  retain 
possession  of  dangerous  premises  to  which  he  bad  a  right  of  entry.  Da- 
lay  V.  Savage,  145  Mass.  38,  4  New  Eng.  Rep.  8G3. 

^Lariie  v.  Farren  Hotel  Co.  116  Mass.  67. 

3See  also  Camp  v.  Wood,  76  N.  Y  92. 

*Tu-jker  v.  lUinois  C.  R.  Co.  (La.  Jan.  20,  1890)  7  So.  Rep.  124:  Todd  v. 
FUght,  9  C.  B.  N.  S.  377;  Jennings  v.  Van  Schaick,  lOS  N.  Y.  530;  Dalay 
V.  Savage,  145  Mass.  38. 


54  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

the  side  of  a  building  to  be  erected  on  such  lot,  it  is  his  duty  to 
see  that  proper  protection  against  danger  to  persons  passing  along 
the  sidewalk  is  provided.  If,  in  consequence  of  such  excavation 
being  insufficiently  guarded,  a  passenger  on  the  sidewalk  falls  in 
and  is  injured,  without  his  own  fault,  the  lot  at  the  time,  for  the 
purpose  of  constructing  an  area  and  erecting  the  building  under  a 
contract,  being  in  the  exclusive  possession  of  a  third  person  (the 
contractor),  who  has  complied  with  the  stipulations  of  his  contract, 
the  owner  is  liable  for  the  injuries  so  received. 

When  one  erects  a  nuisance  he  is  answerable  for  the  continu- 
ance of  it  as  well  as  for  the  original  wrong;  and  this  is  so  where 
the  erection  was  made  upon  the  land  of  another,  and  he  has  no 
right  to  enter  for  the  purpose  of  removing  it.'  The  continuance 
is  a  new  nuisance,'^  and  the  party  cannot  excuse  himself  by  sliow- 
ing  it  is  not  in  his  power  to  redress  the  wrong.  He  must  find 
some  way  of  putting  an  end  to  the  injury.' 

In  Beck  v.  Garter,  68  K.  T.  2S3,  and  Clifford  v.  Dam,  81  N. 
Y.  52,  the  actions  were  in  each  case  against  the  defendant  who 
had  himself  created  the  nuisance. 

A  fterson  who,  with  knowledge  of  the  existence  of  a  nuisance 
upon  real  estate,  purchases  the  reversionary  interest  and  receives 
the  rents  from  the  tenant,  thereby  assumes  the  responsibility  for 
the  nuisance,  and  is  liable  for  damages  caused  thereby  subsequent 
to  his  purchase.*  So  the  owner  will  be  liable  if  the  nuisance  was 
erected  on  the  land  by  a  prior  owner,  or  by  a  stranger,  and  he 
knowingly  maintains  it;  but  the  person  who  acquires  land  on 
which  a  nuisance  exists  is  not  rendered  liable  by  a  mere  omission 
to  abate  or  remove  it,  and  there  must  be  something  amounting  to 
actual  use  of  the  land  or  a  request  made  to  remove  the  nuisance.* 

A  grantee  or  devisee  of  premises  upon  which  there  is  a  nuisance 
at  the  time  the  title  passes  is  not  responsible  for  the  nuisance  un- 
til he  has  had  notice  thereof,  and  in  some  cases  until  he  has  been 
requested  to  abate  the  same.     In  the  case  of  a  continuous  nuisance, 

'  Thompson  v.  Oibson,  7  Mees.  &  W.  456. 

^See  Sewall,  J.,  in  Staple  v.  Spring,  10  Mass.  74. 

^BttsJi  V.  Sieinman,  1  Bos.  &  P.  404.     This  case  has  not  been  questioned  on 

this  point. 
^Pierce  v.  German  Sav.  &  Loan  Society,  72  Cal.  180. 
^Wenzlick  v.  McCotter.  87  N.  Y.  122. 


Chap,  v.]  PURCHASER   CONTINUING   NUISANCE.  55 

the  person  who  erects  it  is  liable ;  the  person  who  succeeds  to  it 
is  not  liable  unless  he  has  notice  and  continues  it,  and  as  soon  as 
he  has  notice  of  it,  he  must  abate  it.'  The  authorities  to  this  effect 
are  so  numerous  and  uniform  that  the  rule  which  they  estal)lisli 
ought  no  longer  to  be  open  to  question.  One  of  the  earliest  cases,  if 
not  the  earliest,  in  which  this  rule  was  announced,  is  Penrwhlock^ s 
Case,  5  Coke,  lOOJ,  where  it  was  resolved  that  an  action  lies 
against  one  who  erects  "a  nuisance  without  any  request  made  to 
abate  it,  but  not  against  the  feoffee,  unless  he  does  not  remove  tlie 
nuisance  after  request ;  and  in  Pierson  v.  Glean,  14  N.  J.  L.  37, 
Chief  Justice  Hornblower  said  :  "  The  law  as  settled  in  Penrud- 
docTvS  Case  has  never,  I  believe,  been  seriously  questioned  since." 

In  McDonough  v.  Gilman,  3  Allen,  264,  it  was  held  that  a 
tenant  for  years  is  not  liable  for  keeping  a  nuisance  as  it  used  to 
be  before  the  commencement  of  his  tenancy,  if  he  had  not  been 
requested  to  remove  it,  or  done  any  new  act  which  of  itself  was 
a  nuisance  ;  and  the  same  rule  has  repeatedly  been  laid  down. 

In  Plumer  v.  Harper,  3  N.  H.  88,  Richardson,  Ch.  J.,  said : 
"When  he  who  erects  the  nuisance  conveys  the  land  he  does  not 
transfer  the  liability  to  his  grantee.  For  it  is  agreed  in  all  the 
books  that  the  grantee  is  not  liable  until  upon  request  he  refuses 
to  remove  the  nuisance." 

In  Woodman  v.  Tufts,  9  N.  H.  88,  it  was  held  that  where  a 
dam  was  erected  and  land  flowed  by  the  grantor  of  an  individual, 
the  grantee  would  not  be  liable  for  damages  in  continuing  the  dam 
and  flowing  the  land  as  before,  except  on  notice  of  damage  and 
request  to  remove  the  nuisance  or  withdraw  the  water. 

In  Eastman  v.  Amoslieag  Mfg.  Co.,  44  ]N".  H.  144,  it  was  held 
that  no  notice  or  request  to  abate  the  nuisance  is  necessarj'  before 
bringing  suit  against  the  original  wrong-doer  in  such  cases  for  the 
damages  done ;  but  that  the  grantee  of  the  nuisance  is  not  liable 
to  the  party  injured  until,  upon  request  made,  he  refuses  to  re- 
move the  nuisance.  Sargent,  J.,  writing  the  opinion,  said  :  "The 
doctrine  of  the  cases  in  this  State  and  elsewhere  is  that  he  who 
erects  a  nuisance  does  not,  by  conveying  the  land  to  another, 

'Willes,  J.,  in  Fletcher  v.  Rylands,  L.  R.  1  Exch.  265.  Unless  the  nuisance 
be  so  evident  and  dangerous  that  linowledge  will  be  chargeable,  if  he 
personally  or  by  agent  take  possession.  Ahem  v.  Steele,  115  N.  Y.  203, 
5  L.  R.  A.  449. 


56  IMPOSED    DUTIES,  PEKSONAL.  [Part    I. 

transfer  the  liability  for  the  erection  to  the  grantee ;  and  the 
grantee  is  not  liable  until  upon  request  he  refuses  to  remove  the 
nuisance,  for  the  reason  that  he  cannot  know  until  such  request 
but  the  datn  was  rightfully  erected ;  and  there  can  be  no  injury  in 
holding  to  this  doctrine,  as  the  original  wrong-doer  continues  lia- 
ble, notwithstanding  his  alienation."  To  the  same  effect  is  Carle- 
ton  v.  Eedington,  21  K  H.  291. 

In  Johnson  v.  Lewis,  13  Conn.  303,  where  it  appeared  in  an 
action  for  the  obstruction  of  a  watercourse  by  raising  a  dam  that 
the  dam  creating  the  obstruction  was  erected  by  the  defendant's 
grantor,  it  was  held  that  the  plaintiff  could  not  recover  without 
proving  a  special  request  to  the  defendant  to  remove  the  obstruc- 
tion. Sherman,  t/!,  writing  the  opinion,  said  :  "  The  law  is  well 
settled  that  a  purchaser  of  the  property  on  which  a  nuisance  is 
erected  is  not  liable  for  its  continuance,  unless  he  has  been  re- 
quested to  remove  it.  This  rule  is  very  reasonable.  The  pur- 
chaser of  property  might  be  subject  to  great  injustice  if  he  were 
made  responsible  for  consequences  of  which  he  was  ignorant,  and 
for  damages  which  he  never  intended  to  occasion.  They  are  of- 
ten such  as  cannot  be  easily  known,  except  to  the  party  injured.'** 
In  Miller  v.  Church,  2  Thomp.  &  C.  259,  the  lessees  of  a  mill- 
pond  were  held  not  liable  for  the  overflow  without  proof  of 
knowledge  of  tenants  of  existing  conditions.*  Where  a  lessee  or 
grantee  continues  a  nuisance  of  a  nature  not  especially  unlawful,, 
he  is  liable  to  an  action  for  it  only  after  notice  to  reform  or  abate 
it.= 

Persons  who  become  full  owners  of  an  estate  on  the  death  of  a 
life  tenant,  subject  to  a  valid  outstanding  lease,  are  not  responsible 
for  a  nuisance  committed  before  the  estate  descended  to  them, 
and  of  which  they  had  no  notice,  and  which  it  was  the  tenant's 
duty  to  remove.  The  receipt  of  rent  will  not  render  the  land- 
lord liable  if  otherwise  not,  nor  will  the  right  to  enter  and  make 
repairs.* 

^Noyes  v.  StiUman,  24  Conn.  15;  PllUbury  v.  Moore,  44  Me.  154;  Beaver» 
V.  Trimmer,  25  N.  J.  L.  97  ;  Hubbard  v.  Russell,  24  Barb.  404. 

2See  Chltty,  PI.  71;  Cooley,  Torts,  611;  1  Hilliard,  Torts  (3d  ed.)  574. 

^Moak's  Underhill,  Torts,  253-255;  Addison,  Torts  (Wood's  Am.  ed.) 
§§  240,  280,  283. 

^Ahern  v.  Steele,  115  N.  Y.  203,  5  L.  R.  A.  449.  See  also  Fish  v.  Dodge, 
4  Denio,  311;  Swords  v.  Edgar,  59  N.  Y.  28. 


Chap,  v.]         .      PUKCHASER   CONTINUING   NUISANCE.  57 

In  Aherfi  v.  Steele,  115  N.  T.  203,  5  L.  E.  A.  419,  wlicro  tlie 
defendants  became  owners  of  the  defective  pier  upon  the  death  of 
their  mother,  it  was  admitted  that,  if  the  defendants  had  p;one  into 
possession  of  tlie  pier  personally,  or  by  their  agents,  its  character 
was  such  that  they  must  have  known  that  it  was  dangerous  and  a 
nuisance,  and  no  direct  proof  of  notice  would  have  been  requii-ed 
to  charge  them ;  it  could  have  been  inferred.  But,  it  was  said, 
when  there  is  no  proof  that  the  owners  of  premises,  which  came  to 
them  with  a  nuisance  existing  thereon  without  their  fault,  were 
ever  in  possession  of  the  premises,  or  ever  even  saw  them,  there  is 
no  possible  ground  for  charging  them  with  notice  or  imputing  to 
them  legal  fault.  The  pier  came  to  them,  not  only  wuth  this  nui- 
sance existing  thereon,  but  subject  to  an  outstanding  lease  for 
some  years,  which  they  had  no  power  to  terminate.  The  lessee 
who  occupied  and  used  the  pier  was  under  obligation  to  the  pub- 
lic to  see  that  it  did  not  become  a  nuisance,  and  it  was  his  duty  to 
respond  for  any  damage  sustained  by  any  person  from  the  nui- 
sance. Tlie  owners  of  the  reversion  had  the  right,  in  the  absence 
of  notice,  to  suppose  that  he  would  discharge  such  duty  and  pro- 
tect the  public,  and  they  were  under  no  obligations  to  see  by 
w^atchful  vigilance  that  he  performed  such  duty.  And  so  it  has 
been  held  in  all  the  analogous  cases,  that  the  landlord,  in  the  ab- 
sence of  notice,  is  liable  only  in  case  he  demised  the  premises  with 
the  nuisance  thereon.  The  fact  that  the  defendants,  under  the- 
lease,  had  the  right  to  go  upon  the  pier  and  make  repairs,  if  they 
should  see  fit  to  do  so,  is  held  to  be  wholly  immaterial.  Even 
when  an  owner  demises  premises  and  covenants  to  repair,  the  cov- 
enant cannot  inure  directly  to  the  benefit  of  a  third  person  not  a 
]3arty  thereto.  But  in  such  case  the  third  person  injured,  because, 
for  want  of  repairs,  the  demised  premises  have  become  a  nuisance, 
has  a  cause  of  action  primarilj'-  against  the  tenant.  But  because 
the  tenant  in  case  of  a  recovery  against  him  could  sue  his  landlord 
for  indemnity  upon  the  covenant,  to  prevent  circuity  of  action, 
the  person  injured  may  bring  his  action  against  the  landlord,  not 
because  the  landlord  owed  him  any  duty  to  repair,  but  because  he 
owed  that  duty  to  his  tenant.  It  would  have  been  wholly  imma- 
terial if  the  owners  of  the  pier  had  let  it  without  reserving  any 
right  to  go  upon  it  for  repairs,  and  even  if  they  could  not  have- 


•58  IMPOSED    DUTIES,  PERSONAL.  [Part   I. 

gone  upon  it  for  repairs  without  being  trespassers.'  There 
is  no  case,  it  is  said  in  the  opinion,  which  holds  that  wliether  the 
landlord  can  or  cannot  go  upon  the  demised  premises  to  make  re- 
pairs IS  a  material  circumstance  affecting  his  liability  for  a  nuisance 
existing  thereon.  It  was  held  in  Clancy  v.  Bijrne^  56  N.  Y.  129, 
that  a  lessee  who  has  covenanted  with  his  landlord  to  repair  is  not 
responsible  to  a  stranger  for  a  nuisance  upon  the  demised  premises 
while  in  the  possession  of  a  sub-tenant  to  whom  he  had  let  them. 
As  he  had  made  no  covenant  to  repair  with  his  tenant,  and  was 
not  bound  to  indemnify  him,  the  person  injured  could  not  main- 
tain an  action  against  him,  although  he  had  covenanted  with  his 
landlord  to  repair.  Consequently,  if  the  owners  of  the  pier  in  Ahem 
V.  Steele^  supra,  had  even  been  under  a  covenant  with  their  prede- 
cessors in  the  title,  or  with  any  other  person  but  the  lessee,  to  keep 
this  pier  in  repair,  their  breach  of  the  covenant  and  failure  to  dis- 
charge their  duty  to  their  covenantee  would  not  have  made  them  lia- 
ble for  the  death  of  the  child  ;  and  with  much  less  reason  can  such  a 
liability  spring  from  a  mere  stipulation  in  a  lease  made  by  one  for 
whose  acts  they  are  in  no  way  responsible,  which  merely  put  it  in 
their  power  to  make  the  repairs.  In  cases  where  it  is  said  that  a 
landlord  bound  to  make  repairs  upon  demised  premises  is  responsi- 
ve for  a  nuisance  thereon,  the  obligation  to  make  the  repairs  was 
one  existing  between  him  and  the  tenant.*  The  whole  ar- 
gument on  this  point  is  summed  up  in  the  statement  that,  where 
there  is  no  breach  by  the  defendants  of  any  duty  due  from  them 
to  the  tenant,  the  stipulations  in  the  lease  do  not  concern  a  stranger 
thereto.  There  is  no  authority  from  the  reported  decisions  or  from 
the  text-books  which  imposes  upon  the  landlord,  not  otherwise  lia- 
ble for  a  nuisance  upon  demised  premises,  the  duty  of  active  vigi- 
lance to  ascertain  their  condition.  A  landlord  has  never  been  held 
responsible  for  a  nuisance  because  he  did  not  himself  obtain  notice 
of  its  existence.  But  it  has  always  been  held  to  be  the  duty. of 
any  person  seeking  to  enforce  the  landlord's  responsibility  for  a 
nuisance  to  show  that  he  had  such  notice. 

In   Woram  v.  Noble,  41  Hun,  398,  the  action  was  brought  to 
recover  damages  for  an  injury  sustained  ill  consequence  of  a  de- 

'FisA  V.  Bodge,  4  Deaio,  311 ;  Swordi  v.  Edgar,  59  N.  Y.  28. 
^Rimcll  V.  Sheiiton,  2  Gale  &  D.  573. 


Chap,  v.]  PURCHASER   CONTINUING   NUISANCE.  59 

fective  coal-hole ;  and  it  appeared  that  the  defendant  became  the 
owner  of  the  premises  in  September,  1883,  subject  to  a  lease  to  a 
tenant,  expiring  May  1,  1884:,  which  required  the  tenant  to  make 
all  repairs;  that  the  coal-hole  was  then  in  tlie  sidewalk,  but  it  liad 
not  been  constructed  by  the  defendant,  nor  did  he  have  any  notice 
or  knowledge  of  its  defective  condition,  although  the  tenant  had 
noticed  the  depression  in  the  stone  about  a  year  previous  to  the 
accident ;  and  it  was  held  that  the  defendant  could  not,  in  the 
absence  of  any  evidence  to  show  that  he  was  responsible  for 
the  condition  of  the  coal-hole  or  had  knowledge  of  its  defective 
condition,  be  held  liable  for  the  injury  sustained  by  the  plaintiff. 
The  judge  writing  the  opinion  said  :  "  We  find  no  special  decision 
and  no  principle  enunciated  in  any  elementary  work  that  will 
furnish  a  basis  for  a  recovery  against  the  defendant  in  this  action. 
He  did  not  construct  the  work  that  became  a  nuisance,  and  he  did 
not  continue  it  in  any  legal  sense."  The  defendant  became  the 
owner  subject  to  a  lease,  and  the  nuisance  existed  at  the  time  he 
became  such  owner,  and  it  was  held  that  he  could  not  be  made 
liable  for  the  accident  without  proof  of  notice  to  him  of  the  exist- 
ence of  the  nuisance. 

In  Conhocton  Stone  Road  v.  Buffalo,  N.  Y.  &  E.  li.  Co.,  51 
N.  Y.  573,  the  action  was  brought  to  recover  damages  for  injuries 
to  the  plaintiff's  roadbed,  caused  by  the  same  being  washed  and 
flooded  in  the  years  1864  and  1865,  by  reason  of  an  embankment 
and  bridge  built  over  a  creek  by  a  prior  owner  of  defendant's 
road  in  1851  or  1852.  The  defendant  became  the  owner  of  tlie 
embankment,  bridge,  and  of  its  road  by  purchase  at  a  foreclosure 
sale  in  1857,  and  in  February,  1863,  it  leased  its  road,  including 
the  embankinent  and  bridge,  to  the  Erie  Railway  Company,  Avhicli 
took  possession  of  the  road  and  had  possession  under  its  lease  at 
the  time  of  the  damage  complained  of  by  the  plaintiff;  and  the 
general  rule  was  affirmed  that  in  order  to  maintain  an  action  for 
damages  resulting  from  a  nuisance  upon  defendant's  land,  wliere 
such  nuisance  was  erected  by  a  prior  owner  before  conveyance  to 
defendant,  it  is  necessary  to  show  that  before  the  commencement 
of  the  action  he  had  notice  or  knowledge  of  the  existence  of  the 
nuisance,  but  that  it  is  not  necessary  to  prove  a  request  to  abate 
it.     Judge  Lott,  writing  the  opinion,  said:  "AVliei-e  persons  sue- 


60  IMPOSED    DUTIES,  PERSONAL.  [Part    L 

ceedin^  to  the  ownership  of  land  on  which  a  nuisance  had  previ- 
ously been  erected  have  been  held  liable  for  damages  resulting- 
from  its  subsequent  continuance,  it  appeared  either  that  it  was 
after  notice  of  its  existence  or  that  the  question  of  such  notice- 
had  not  been  raised  at  the  trial,"  There  the  defendant  became 
the  owner  of  the  premises  with  the  nuisance  existing  thereon, 
and  actually  leased  them  in  the  same  condition  to  another  com- 
pany, which  was  in  possession  at  the  time  of  the  damage  com- 
plained of ;  and  yet,  in  the  absence  of  proof  that  the  defendant 
had  notice  of  the  nuisance,  it  was  held  not  to  be  liable  for  damages 
caused  thereby. 

In  Brown  v.  Cayuga  c&  S.  R.  Co.,  12  N.  Y.  486,  the  predecessor, 
of  the  defendant  had  constructed  its  road  across  a  stream  of  water 
in  such  a  manner  as  to  cause  the  stream  to  overflow  and  damage 
the  lands  of  the  plaintiff.  Upon  the  trial  the  defendant  insisted 
that  inasmuch  as  it  had  no  agency  in  building  the  obstruction  in 
the  stream  or  in  making  the  excavation  through  the  bank,  but 
that  had  been  done  by  the  old  company,  it  was  not  liable,  and 
upon  this  ground  it  moved  for  a  nonsuit,  which  was  denied.  Upon 
the  appeal  it  was  held  that  the  defendant  could  not  have  the  ben- 
efit of  the  point  that  there  had  been  no  request  to  abate  the  nui- 
sance because  it  was  in  no  way  taken  at  the  trial ;  and  hence  the 
case  was  treated  as  if  the  request  had  actually  been  made  and 
proven.  The  point  decided,  as  stated  in  the  head  note,  is  that  "the 
successor  to  the  title  and  possession  of  property  who  omits  to  abate 
a  nuisance  erected  thereon  by  another,  after  notice  to  so  do,  is 
liable  for  the  damage  caused  by  its  continuance."  Judge  Denio, 
writing  one  of  the  opinions,  held  that  an  action  on  the  case  will 
lie  against  one  who  continues  a  nuisance  by  which  damage  is  oc- 
casioned to  the  plaintiff  without  notice  first  given  to  remove  it. 
He  cited  no  authority  sustaining  his  views,  but  cited  authorities 
in  conflict  with  them,  holding  that  they  were  not  binding  upon 
the  court.  But  it  is  expressly  stated  that  the  court  did  not  pass 
upon  the  question  whether  the  defendant  was  liable  without  notice 
to  remove  the  obstruction  and  restore  the  bank  of  the  stream ;  and 
the  views  of  Judge  Denio,  besides  having  the  support  of  no  au- 
thority in  this  country  or  England,  were  distinctly  repudiated  in 
Conlwcton  Stone  Road  v.  Buffalo,  N.  Y.  c&  K  R.  Co.,  51  N.  Y. 
573. 


Cliap.  Y.]  NUISANCE    DUKING    TEKM    OF    LEASE.  01 

2.  Kuiscmce  Occurring  During  Term  of  Lease- 
Covenant  to  Repair. 

An  owner  who  lias  demised  premises  for  a  term,  during  which 
the_y  become  ruinous,  and  thus  a  nuisance,  is  not  responsible  for 
the  nuisance  unless  he  has  covenanted  to  repair.'  When  the  de- 
fect occurs  after  lease,  with  no  contract  bj  landlord  to  repair  and 
no  fault  of  original  construction,  he  is  not  liable." 

In  Knauss  v.  Brua,  107  Pa.  85,  repeated  in  Foio  v.  I2oberts, 
108  Pa.  489,  it  is  said  :  "  We  do  not  doubt  but  that,  in  the 
absence  of  an  agreement  to  repair,  the  landlord  is  not  liable  to  a 
third  party  for  a  nuisance  resulting  from  dilapidation  in  the  lease- 
hold premises  whilst  in  the  possession  of  a  tenant." 

A  landlord  is  not  liable  to  a  servant  of  his  tenant  for  injuries 
occasioned  by  a  dangerous  condition  of  the  premises  existing  at 
the  time  of  the  lease,  although  he  subsequently  promised,  without 
any  new  consideration,  to  repair  the  premises,  if  there  was  no 
covenant  to  repair  in  the  lease.*  Nor  is  he  liable  to  his  tenant, 
without  express  contract,  for  damages  arising  from  defects  in  the 
building,  in  the  absence  of  fraud." 

In  Jaffe  v.  Harteau,  56  N.  Y.  398,  it  was  held  that  a  lessor  of 
buildings,  in  the  absence  of  fraud  or  any  agreement  to  that  effect, 
is  not  liable  to  the  lessee  or  others  lawfully  upon  the  premises  for 
their  condition,  or  that  they  are  tenantable  and  may  be  safely  and 
conveniently  used  for  the  purposes  for  which  they  are  apparently 
intended. 

The  landlord  is  not  answerable  for  any  wrongful  use  or  negli- 
gent management  of  the  premises  by  the  lessee.     Applied,  to  the 

^Clancy  v.  Byrne,  56  N.  Y.  129;  Swords  v.  Edfjar,  59  N.  Y.  28;  Wolf  v.  Kil- 
patrick,  lUl  N.  Y.  146,  3  Cent.  Rep.  81;  Ahem  v.  Steele,  115  N.  Y.  203, 
5  L.  R.  A.  440.  Applied  to  defective  sidewalk,  Bnbboge  v.  Poiccrs  (Sup 
Ct.  Oct.  19,  18S9),  26  N.  Y,  S.  R.  799;  Rankin  v.  Ingwerson,  49  N.  J.  L. 
481,  8  Cent.  Rep.  371. 

^Johnson  V.  McMillan,  69  Mich.  36,  13  West.  Rep.  740;  Wolf  v.  Kilpnirick 
101  N.  Y.  146,  2  Cent.  Rep.  81;  Woram  v.  Noble,  41  Hun,  398;  Rich  v. 
Bnsterfield,  4  C.  B.  784,  limiting  the  ruling  in  Rex  v.  Pedly,  1  Ad.  &  El. 
822. 

*Perez  v.  Rabaud,  76  Tex.  191,  7  L.  R.  A.  620. 

^iMcas  V.  Coulter,  104  Ind.  81;  Taylor,  Land  and  Ten.  §  381;  Wood,  Land, 
and  Ten.  §317;  Gleves  v.  WiUoucjhby,  7  Hill,  83;  O'Brien  v.  Capwell,  59 
Barb.  497;  Hart  v.  Windsor,  12  Mees.  &  W.  68;  Keates  v.  Earl  of  Cadogan, 
10  C.  B.  591;  Robbins  v.  Jones,  15  C.  B.  N.  S.  231;  Leavilt\.  Fletcher, 
10  Allen,  119;  Godley  v.  Ilagerty,  20  Pa.  387. 


62  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

case  of  a  leased  ferry ;'  to  the  case  of  a  livery  stable  f  to  the 
proprietor  of  a  tenement  house  f  placing  heavy  stone  on  bal- 
cony ;*  staging  suspended  from  cornice  f  roof  used  for  laundry 
purposes."  The  owner  of  a  building  in  the  possession  and  control 
of  his  tenants  is  not  liable  for  the  consequences,  to  a  third  person, 
of  a  nuisance  in  connection  with  the  building,  unless  the  nuisance 
occasioning  the  injury  existed  at  the  time  the  premises  were 
demised.''  A  landlord  is  not  liable  for  the  maintenance  of  a 
nuisance  by  his  tenant."  To  render  the  landlord  liable  for  injury 
it  must  be  sliown  that  it  necessarily  arises  from  the  ordinary  use 
of  the  premises,  and  that  it  could  not  be  avoided  by  ordinary  care 
on  the  part  of  the  tenant.* 

It  has  been  held  in  England  and  in  Massachusetts  that  an  owner 
may  demise  premises  so  defective  and  out  of  repair  as  to  be  a 
nuisance,  and,  if  he  binds  his  tenant  to  make  the  repairs,  he  is  not 
responsible  for  the  nuisance  during  the  term.'" 

A  lease  of  a  store  and  basement  includes  the  excavation  under 
the  sidewalk  and  its  covering,  and  the  tenant's  covenant  to  keep 
in  repair  applies  to  it.  Hence  it  is  ruled  in  Massachusetts  that  a 
landlord  is  not  under  obligation  to  see  that  excavations  in  side- 
walks, made  by  him  and  covered  when  left,  are  kept  covered," 
although  he  had  a  right  of  entry  to  repair  if  he  wished ;  and  that 
the  owner  of  a  building  leased  to  a  tenant,  who  occupied  it,  is  not 
liable  in  that  State  to  a  third  person  who  was  injured  in  passing  along 
the  walk  leading  from  the  street  to  a  building  for  the  purpose  of 
transacting  business  with  the  tenant,  by  falling  down  an  embank- 
ment adjoining  the  walk,  although  the  estate  was  in  that  condi- 

^Norton  v.  Wisioall,  2fi  Barb.  618. 

^Morris  v.  Brower,  Anth.  N.  P.  368. 

^Weston  V,  Tail<yrs  of  Potterrow,  14  F.  C.  1233, 

''■Mullen  V.  Bainear,  45  N.  J.  L.  520. 

^Fanjoy  v.  Seales,  29  Cal.  243. 

^Ivay  V.  Hedges,  L.  R.  9  Q.  B.  Div.  80. 

''Kalis  V.  Shattuck,  69  Cal.  593. 

8  ^Gilliland  v.  Chicago  &  A.  E.  Co.  19  Mo.  App.  411,  2  West.  Rep.  438. 

^^Pretty  v.  Bickmore,  L.  R.  8  C.  P.  401;   Owinnell  v.  Earner,  L.  R.  10  C.  P, 

658;  Leonard  v.  Storer,  115  Mass.  80. 
^^Boston  V.  Gray,  144  Mass.  53,  8  New  Eng.  Rep.  698;  Loicell  v.  Spaulding,  4 

Cush.  277;  Stewart  v.  Putnam,  127  Mass.  403;  Larue  v.  Farren  Hotel  Co. 

116  Mass.  67. 


Chap,  v.]  NUISANCE    DUKING    TEKM    OF    LEASE.  63 

tion  prior  to  the  letting,*  uor  for  falling  down  an  elevator  well, 
occasioned  bj  the  unlocking  of  the  elevator  door  by  a  tenant,  who 
obtained  the  key  without  the  landlord's  knowledge." 

In  Dalay  v.  Savage^  145  Mass.  38,  4  New  Eng.  Eep.  803,  it  is 
decided  that  if  a  landlord  lets  premises  abutting  upon  a  way, 
which  are,  from  their  condition  or  construction,  dangerous  to  per- 
sons lawfully  using  the  way,  he  is  liable  to  such  persons  for  injur- 
ies suffered  thereupon,  although  the  premises  are  occupied  by  a 
tenant,  unless  the  tenant  has  agreed  with  his  landlord  to  put  the 
premises  in  proper  repair.  That  the  tenant  may  also  be  liable  is 
not  a  defense  to  the  landlord.  This  rule  was  applied  in  an  action 
for  damages  for  an  injury  received  by  falling  into  a  defective 
coal-hole  in  the  sidewalk  in  front  of  the  house  to  which  the  coal- 
hole was  appurtenant,  where  the  defendant  had  purchased  the 
premises  and  had  a  right  to  the  possession  thereof,  but  had  per- 
mitted the  person  in  possession  to  continue  therein  as  tenant  at 
will,  with  the  defect  existing  in  the  premises,  without  an  agree- 
ment from  such  tenant  to  repair  the  premises.  It  is  said  in  that 
case  that  Pretty  v.  Biclcmore,  L.  R.  8  C.  P.  401,  was  decided  on 
the  ground  that  the  tenant  had  covenanted  to  keep  the  premises 
in  repair,  and  therefore  the  landlord  could  not  be  said  to  have 
given  authority  that  the  premises  should  be  kept  in  a  dangerous 
state.* 

But  these  cases  permitting  the  owner  to  demise  premises  in  a 
dangerous  condition  and  protect  himself  by  requiring  from  the 
lessee  a  covenant  to  repair  are  not  in  entire  harmony  with  the 
decisions  in  other  States,  and  probably  w^ould  not  now  be  generally 
received  as  authority  in  this  country  or  in  England,  although  the 
conclusion  that  the  landlord's  liability  in  such  case  will  be  dis- 
charged by  reason  of  his  having  required  the  tenant  to  stipulate 
to  keep  the  demised  premises  in  repair  seems  to  have  been  taken, 
as  above  shown,  in  Pretty  v.  Bichhiore,  L.  R.  8  C.  P.  401,  which 
case  was  followed  and  approved  in  Gimnnell  v.  Ecnner^  L.  li.  10 
C.  P.  658.  But  it  is  impossible  to  reconcile  those  cases  with  the 
principle  established  by  the  leading  cases  or  with  reason ;  for  it  is- 

^Mellen  v.  Morrill,  126  Mass.  545. 

*Handyside  v.  Powers,  145  Mass.  133,  5  New  Eng.  Rep.  179. 
*See    ^.eonard  v.  Storer,  115  Mass.  86.     Owinnell  v.  Earner,  L.  R.   10  C.  P. 
658,  follows  Pretty  v.  Bickmore. 


-64  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

unsound  to  sa)^  tliat  one  who  is  liable  for  a  continuing  nnisance 
may  shift  his  liability  to  an  irresponsible  tenant  by  merely  taking 
a  contract  to  remedy  the  nuisance  by  repairs.' 

Rex  V.  Pedly,  1  Ad.  &  EI.  822,  was  much  relied  upon  by  the 
plaintiff  in  Ahem  v.  Steele,  115  IT.  Y.  203,  5  L.  R.  A.  449,  and 
was  fully  reviewed  by  the  court  and  its  value  as  an  authority 
questioned.  There  the  defendant  purchased  j)remises  which  were 
in  the  occupancy  of  tenants  under  a  demise  for  short  periods  of 
time  from  the  prior  owner,  and  a  nuisance  arose  thereon  after  the 
purchase  and  after  the  defendant  began  to  receive  the  rents.  The 
•defendant,  the  periods  being  short,  was  treated  as  having  relet  the 
premises  to  the  tenants  with  the  nuisance  thereon,  and  it  was  held 
that  he  thereby  became  liable  for  the  nuisance ;  and  upon  that 
ground  the  decision  can  stand  in  harmony  with  all  the  cases,  it  is 
said.  But  the  court  seems  to  have  gone  further  and  affirmed  a 
proposition,  not  necessary  for  the  decision,  that  such  a  reversioner 
is  liable  to  be  indicted  for  the  continuing  of  the  nuisance,  if  the 
original  reversioner  would  have  been  liable,  though  the  purchaser 
has  had  no  opportunity  of  putting  an  end  to  the  tenant's  interest ' 
or  abating  the  nuisance.  That  proposition  is  declared  unsound, 
and  as  to  that  the  case  has  been  overruled  and  distinctly  rej)udi- 
ated  in  England. 

In  Rich  V.  Basterfield,  4  C.  B.  784,  the  case  of  Rex  v.  Pedly 
was  largely  criticized,  and  Cresswell,  J.,  writing  the  opinion,  said 
of  it  that,  "  if  Rex  v.  Pedly  is  to  be  considered  as  a  case  in  which 
the  defendant  was  held  because  he  had  demised  the  buildings 
where  the  nuisance  existed,  or  because  he  had  relet  them  after 
the  user  of  the  buildings  had  created  the  nuisance,  or  because  he 
had  undertaken  the  cleansing,  and  had  not  performed  it,  we  think 
the  judgment  right,  and  that  it  does  not  militate  against  our  j)res- 
ent  decision.  But  if  it  is  to  be  taken  as  a  decision  that  a  landlord 
is  responsible  for  the  act  of  his  tenant  in  creating  a  nuisance  by 
the  manner  in  which  he  uses  the  premises  demised,  we  think  it 
goes  beyond  the  jjrinciples  to  be  found  in  any  previously  decided 
cases,  and  we  cannot  assent  to  it." 

In  Todd  V.  Flight,  9  C.  B.  N.  S.  377,  Rex  v.  Pedly  was  cited 
as  holding  that  if  the  defendant  demised  the  privy  either  when  it 

^Ranlcin  v.  Ingicersen,  49  N.  J.  L.  481,  8  Cent.  Rep.  371. 


Chap.  Y.]  NUISANCE    DURING    TERM    OF    LEASE.  65 

had  become  a  nuisance,  or  if  he  liad  the  duty  of  cleansing  it  after 
it  became  a  nuisance,  he  might  be  indicted  for  the  nuisance. 

In  Russell  v.  Shenton,  2  Gale  &  D.  573,  it  was  said  by  Lord 
Chief  Justice  Denman,  in  reference  to  Rex  v.  Pedly,  that  "it  was 
an  indictment  against  the  owners  of  houses  and  privies  which  had 
been  built  for  the  very  purpose  of  being  so  used  as  to  create  a  nui- 
sance unless  the  owner  took  effectual  means  to  prevent  it.  These 
means  not  having  been  adopted,  the  owner  who  received  rents  for 
both  was  held  liable  for  the  public  nuisance." 

In  the  case  of  Ganchj  v.  Jubher,  5  Best  &  S.  78,  the  owner  of 
premises  attached  to  which  was  an  area  let  the  same  to  a  tenant 
from  year  to  year,  and  died,  having  devised  the  property,  with  an 
iron  grating  over  the  area  improperly  constructed  and  out  of  re- 
pair so  as  to  amount  to  a  nuisance,  to  the  defendant,  who,  having 
no  notice  of  the  nuisance,  suffered  the  tenant  to  remain  in  occu- 
pation of  the  premises  upon  the  same  terms  as  before,  receiving 
rent ;  and  it  was  held  that  he  was  liable  for  damage  caused  by  the 
nuisance,  on  the  ground  that  he  had  relet  the  premises  with  the 
nuisance  thereon.  It  is  clear  that  the  court  was  of  the  opinion 
that  the  defendant  would  not  have  been  liable  but  for  the  fact 
that  he  had  let  the  premises  with  the  nuisance  thereon.  That 
case  went  by  appeal  to  the  Exchequer  Chamber,  and  is  again  re- 
ported in  the  same  volume,  at  page  485  ;  and  it  was  there  strenu- 
ously contended  on  behalf  of  the  defendant  that  he  was  not  liable 
because  he  could  not  be  treated  as  having  demised  the  premises 
with  the  nuisance  thereon,  and  because  he  had  no  notice  of  the 
nuisance.  The  court  took  the  case  under  consideration  and  finally 
recommended  the  plaintiff  to  accept  a  stet  processus — substantially 
a  final  stay  of  proceedings — and  the  plaintiff  accepted  it,  evidently 
induced  so  to  do  because  of  information  that  the  judgment  would 
go  against  him.  In  the  course  of  the  argument  in  the  Exchequer 
Chamber,  Chief  Justice  Earle  said  of  the  landlord's  liability  :  "  If 
he  lets  the  premises  with  a  nuisance,  all  parties  agree  that  he  is 
responsible." 

The  reasons  why  the  Exchequer  Chamber  recommended  that  the 
plaintiff  should  accept  a  stet  processus  do  not  appear  in  the  report. 
But  in  9  Best  &  S.  15,  there  is  what  purports  to  be  the  undeliv- 
ered opinion  of  the  court  in  that  case,  showing  that  the  court  had 
5 


Q6  IMPOSED   DUTIES,  PERSONAL.  [Part    I. 

unanimously  come  to  the  conclusion  to  reverse  tlie  judgment  of 
the  Queen's  Bench,  and  in  the  opinion  the  case  of  liex  v.  Pedly 
was  again  criticized,  explained  and  limited  as  in  prior  cases.  One 
question  in  the  case  was  whether  a  landlord  who  has  the  power  to 
determine  a  tenancy  from  year  to  year  by  giving  notice,  and  who 
does  not  exercise  it,  is  to  be  held  as  thereby  reletting  the  prem- 
ises. In  the  opinion  published  in  9  Best  &  S.  the  ground  on  which 
the  Exchequer  Chamber  differed  from  that  of  the  Queen's  Bench 
distinctly  appears  as  follows :  "  We  agree  that  to  bring  liability 
home  to  the  owner,  the  premises  being  let,  the  nuisance  must  be 
one  which  was  in  its  veiy  essence  and  nature  a  nuisance  at  the 
time  of  the  letting,  and  not  something  which  was  capable  of  being 
thereafter  rendered  a  nuisance  by  the  tenant,  and  that  it  is  a  sound 
principle  of  law  that  the  owner  of  property  receiving  rent  should 
be  liable  for  a  nuisance  existing  on  his  premises  at  the  date  of  the 
demise  ;  but  that  wherein  we  differ  is  that  a  landlord  from  year  to 
year  having  the  power  to  give  the  ordinary  notice  to  quit,  and  not 
giving  it,  is  thereby  to  be  held  as  reletting  the  premises,  and  that 
such  failing  to  give  notice  is  equivalent  to  a  reletting."  That 
case  then  is  an  authority  that  devisees  of  premises  under  a  lease 
for  a  term,  with  no  power  in  the  devisees  to  terminate  the  lease 
during  the  term,  are  not  liable,  although  they  received  rent,  for 
a  nuisance  which  they  did  not  cause,  create  or  authorize. 

In  Salmon  v.  Bensley,  Ryan  &  M.  189,  a  nisi  jprius  case  of 
very  doubtful  authority,  it  was  held  that  a  notice  to  remove  the 
nuisance  left  at  the  premises  is  evidence  against  a  subsequent  oc- 
cupier. That  case  has  no  bearing  where  the  defendants  were  not 
subsequent  occupiers,  and  did  not  continue  the  nuisance. 

In  "Wood's  Landlord  and  Tenant,  618,  the  author  says :  "  When 
a  nuisance  results  from  such  want  of  repair,  and  there  is  no  cove- 
nant to  repair  on  the  part  of  either  landlord  or  tenant,  an  action 
may  be  maintained  against  either  of  them  therefor."  But  he  was 
speaking  of  repairs  which  the  landlord  was  bound  by  some  law  to 
make.  But  there  is  no  general  law  and  no  rule  of  law  which  im- 
poses upon  the  landlord  the  duty  to  make  repairs  upon  premises  in 
the  occupancy  of  his  tenant.  At  page  917  the  learned  author 
states  the  proper  rule  for  these  cases.  There  he  says :  "  The 
landlord's  right  of  possession  being  suspended  during  the  term,  it 


Chap,    v.]  NUISANCE   DURING    TERM    OF    LEASE.  67 

follows  that  Lis  liabilities  in  respect  to  the  possession  are  also  sus- 
pended in  respect  to  such  matters  or  defects  in  the  premises  as 
existed  when  the  premises  were  let  arising  from  the  manner  of 
use  or  defective  coustruction.  If  a  nuisance  existed  upon  the 
premises  at  the  time  of  the  demise,  the  landlord,  as  well  as  the 
tenant,  is  liable  for  the  damages  resulting  therefrom,  although  it 
only  becomes  a  nuisance  by  the  act  of  the  tenant  in  using  it  for 
ordinary  purposes.  And  if  the  tenant  creates  a  nuisance  upon  the 
premises  during  the  term  by  an  unusual  or  extraordinary  use 
thereof,  although  the  landlord  cannot  be  made  chargeable  for  the 
consequences  in  the  first  instance,  yet  if  he  subsequently  renews 
the  lease  with  the  nuisance  thereon,  he  becomes  chargeable  there- 
for the  same  as  though  the  nuisance  had  existed  at  the  time  of  the 
original  demise ;  and  when  a  person  is  in  possession  as  a  tenant 
from  year  to  year,  each  year  is  treated  as  a  reletting,  so  that  the 
landlord  becomes  chargeable  for  a  nuisance  created  by  the  tenant 
during  a  previous  year  which  is  in  existence  at  the  commence- 
ment of  the  new  year."  And  there  is  more  to  the  same  effect,  as 
there  is  also  in  Wood's  Law  of  Nuisance,  78,  141. 

In  Clancy  v.  Byrne,  56  N.  T.  129,  the  true  rule  was  stated  by 
Folger,  e/.,  who  wrote  the  opinion.  That  was  a  case  where  plaintiff's 
horse  fell  through  a  defective  pier,  and  the  action  was  against  a 
lessee  who  had  covenanted  with  his  landlord  to  make  all  ordinary 
repairs.  The  lessee  had  sublet  the  pier,  and  was  not  in  the  occu- 
pancy thereof,  and  it  was  held  that  if  premises  are  in  good  repair 
when  demised,  but  afterwards  become  ruinous  and  dangerous,  the 
landlord  is  not  responsible  therefor,  either  to  the  occupant  or  to 
the  public,  during  the  continuance  of  the  lease,  unless  he  has  ex- 
pressly agreed  to  repair  or  has  renewed  the  lease  after  need  of  re- 
pair has  shown  itself ;  and  that  this  rule  applies  to  a  lessee  out  of 
possession  who  has  sublet  to  another  who  is  in  possession.  The 
learned  judge  said :  "  Generally  speaking  the  person  responsible 
for  a  nuisance  is  he  who  is  in  occupation  of  the  premises  on  which 
it  exists.  ...  As  between  him  who  is  landlord  and  owner 
and  him  who  is  the  lessee  and  occupant  of  the  premises,  there  is  in 
general  no  obligation  upon  the  former  to  keep  them  in  repair, 

where  he  has  made  no  express  contract  to  that  effect 

Numerous  autliorities  are  cited.     We  have  examined  tliem  all.    It 


68  IMPOSED   DUTIES,  PEltSONAL.  [Part   I. 

will  be  seen  that  in  them  the  liability  of  the  defendant  is  placed 
upon  one  of  these  grounds,  viz.:  that  he  owned  or  had  rights  in 
the  premises,  and  leased  them  with  the  nuisance  upon  them ; 
that  he  was  in  the  possession  of  the  premises  and  used  them  in 
their  defective  condition ;  that  he  was  under  a  contract  enforce- 
able by  plaintiff  to  keep  the  premises  in  repair  and  failed  so  to  do; 
that  he  in  the  first  instance  created  the  nuisance  and  put  it  in  the 
power  of  others  to  continue  it ;  or  that,  being  a  municipal  corpo- 
ration, there  was  a  duty  upon  it  to  repair.  If  there  are  authorities 
which  in  the  remarks  of  the  court  reach  farther  than  this,  they 
will  be  found  to  go  beyond  the  needs  of  the  case  in  hand." 

If  the  owner  has  demised  premises  and  covenanted  to  keep  them 
in  repair,  and  omits  to  repair,  and  thus  they  become  a  nuisance, 
he  is  liable;'  and  if  the  landlord  is  bound  to  repair  and  the  ten- 
ant can  have  his  action  for  failure,  to  avoid  circuity  of  action, 
the  party  injured  may  sue  both  landlord  and  tenant  in  one  ac- 
tion.'* If  the  landlord  agrees  to  keep  the  j3remises  in  repair  and 
neglects,  he  is  liable,  or  if  he  knows  their  dangerous  condition 
and  does  not  notify  tenant.^ 

b.  Highzvays. 

At  common  law  the  duty  of  keeping  highways  safe  for  travel 
pertains  ordinarily  to  the  parish  at  large.*  But  since  the  traveler 
might,  when  the  highway  became  unsafe,  pass  over  the  adjacent 
projDerty,  the  tenant  of  that  proj^erty,  who,  if  he  chose,  might 
inclose  it  so  as  to  exclude  the  traveler,  became  bound  to  keep  the 
road  in  front  of  his  premises  in  repair.^  But  this  doctrine  forms 
no  part  of  the  American  legal  system.  From  very  early  times 
the  policy  of  the  States  has  encouraged  the  building  of  fences  and 
the  people  have  been  accustomed  to  inclose  their  lands  lying  upon 
their  roads;  yet  the  burden  of  maintaining  the  highways  has 
always  been  borne  by  the  public  wdth  moneys  raised  under  the 

^Benson  v.  Suarez,  43  Barb.  408;  Chicago  v.  O'Brennan,  65  111.  160. 
^Lowell  V.  Spaulding,  4  Cush.  277;  Larue  v.  Farren  Hotel  Co.  116  Mass.  67. 
^Edwards  v.  New  York  &  R.  B.  Co.  98  N.  Y.  245. 
"^King  v.  Sheffield,  2  T.  K.  106. 

^Sir  Edward  Duncomh's  Case,  Cro.  Car.  366;  Dovaston  v.  Payne,  2  Smith, 
Lead.  Cas.  *2Uo,  note. 


Chap,  y.]  ENCROACHMENTS    UPON    HIGHWAYS.  <od 

taxing  power  and  no  instance  is  known  in  wliich  a  public  or  pri- 
vate prosecution  has  been  sustained  against  the  occupant  of  an 
adjoining  inclosure  for  mere  omission  to  repair  the  road.  Indeed, 
it  is  a  well-settled  j^rinciple  that  the  expense  of  keeping  and  im- 
proving highways  cannot  be  charged  on  the  owner  of  abutting 
lands,  whether  inclosed  or  not,  merely  because  of  tlieir  frontage, 
and  this  negatives  the  idea  that  the  old  English  rule  is  enforced 
among  us.  In  some  of  the  States  a  distinction  has  been  drawn 
between  a  road  in  general  and  the  sidewalk  ;*  probably  this  is 
occasioned  on  account  of  the  peculiar  privileges  usually  accorded 
to  the  owner  of  land  to  use  the  adjacent  sidewalk  for  stoops,  areas, 
chutes  and  other  domestic  and  trade  conveniences ;  and  on  that 
ground  he  has  been  held  chargeable  with  the  whole  expense  of 
maintaiTiing  this  portion  of  the  road.''  But  even  this  liability  has 
not  been  extended  beyond  the  limits  fixed  by  express  legislation. 
No  case  has  intimated  that  if  the  owner  or  occupant  of  abutting 
premises  had  not  in  any  way  interfered  with  the  side  of  the  road 
and  had  had  no  duty  enjoined  upon  him  in  regard  to  it  by  statute 
or  lawful  municipal  regulation,  he  was  under  obligation  to  render 
it  fit  or  safe  for  passage.'  Indeed  such  private  duty  is  enforced 
mainly  for  public  benefit  and  forms  an  exception  to  the  rule  that 
public  advantage  should  be  secured  at  public  cost.  It  ought  not 
to  be  extended  in  any  case  beyond  the  point  already  recognized 
by  the  authorities.* 

c.  Encroachments  upon  Highways.— JYuisctnces. 

The  right  of  parties  upon  public  ways  and  streets  is  a  public 
right  in  which  the  whole  community  have  an  equal  interest  with 
an  equal  right  to  complain  of  any  infringement  upon  any  such 
right.  Encroachments  upon  the  right  to  pass  along  a  public  high- 
way, which  amount  to  public  nuisances,  which  consist  in  doing  a 
thing  to  the  annoyance  of  the  public,  or  neglecting  to  do  a  thing 

^Defined  in  Eoufe  v.  Fulton,  34  Wis.  608. 

mm  V.  Fond  du  Lac,  56  Wis.  242;  Paxfton  v.  Sweet,  13  N.  J.  L.  196;  State 

V.  Newark,  37  N.  J.  L.  415;  State  v.  New  Brunswick  Street  Gomrs.  42  N. 

J.  L.  510;  State  v.  New  Brunswick  Street  Comrs.  44  N.  J.  L.  116. 
''Bobbins  v.  Jones,  15  C.  B.  N.  S.  221;  Fisher  v.  Browse,  2  Best  &  S.  770. 
*WeUer  v.  McCormick,  47  N.  J.  L.  397. 


70  IMPOSED    DUTIES,  PERSONAL.  [Part   I. 

which  the  common  good  requires,"  may  be  prosecuted  in  behalf 
of  the  public' 

Any  obstruction  which  renders  a  highway,  or  any  portion 
thereof,  less  commodious  is  a  nuisance,'  and  is  prima  facie  in- 
dictable.* To  make  an  obstruction  indictable  it  must  injuriously 
affect  a  right  in  which  the  public  have  an  interest,  and  not  a  mere 
private  right  or  right  of  a  definite  number  of  persons.^ 

The  maintenance  of  a  dam  in  such  a  manner  as  to  cause  M'ater 
to  overflow  a  highway  and  wash  gullies  therein  constitutes  a  pub- 
lic nuisance ;  and  if  the  town  which  is  bound  to  maintain  such 
highway  suffei's  special  damage  from  such  nuisance,  it  may  re- 
cover the  same  against  the  party  maintaining  it ;'  or  one  that 
collects  water  upon  other  property  may  be  restrained  from  con- 
tinuino;  the  wrong.^ 

In  Davis  v.  Winslow,  51  Me.  264,  cited  with  approval  in  Harold 
V.  Jones,  86  Ala.  274,  3  L.  R.  A.  406,  the  right  to  use  watercourses 
as  highways,  and  the  right  to  use  highways  upon  land,  are  declared 
to  be  analogous,  and  to  depend  on  the  same  general  principles. 
The  general  rule  is  that  an  individual  may  maintain  an  action  to 
recover  damages,  who  has  suffered  special  injury  in  consequence 
of  obstructions  to  a  highway,  whether  upon  land  or  water,  which 
constitute  public  nuisances.  Any  and  all  of  the  public  have  an 
equal  right  to  the  reasonable  use  of  a  highway,  but  the  enjoyment 
by  one  necessarily  interferes  to  some  extent,  for  the  time  being, 
with  its  free  and  unimpeded  use  by  others. 

estate  V.  Godwinsnlle  &  P.  M.  B.  Co.  49  N.  J.  L.  266,  9  Cent.  Rep.  128;  3 
Bl.  Com.  216;  4  Bl.  Com.  166;  Wellbourn  v.  Davies,  40  Ark.  87;  Bald- 
win V.  Ensign,  49  Conn.  117;  Paducah  &  E.  B.  Co.  v.  Com.  80  Ky.  146; 
Heeg  v.  Licht,  80  N,  Y.  582;  Noyes  v.  ShepJierd,  30  Me.  174;  State  v. 
Portland,  74  Me.  271;  Bonner  v.Welborn,  7  Ga.  311;  Burditt  v.  Swenson, 
17  Tex.  502;  Atty-Oen.  v.  Evart  Booming  Co.  34  Mich.  473;  Chesbrough 
V.  Comrs.  37  Ohio  St.  516;  Anderson,  Law  Diet,  title  Nuisance;  Yates  v. 
Warrenton,  84  Va.  337. 

^Iveson  V.  Moore,  1  Ld.  Raym.  486;  Davis  v.  New  Fork,  14  N.  Y.  506;  Fair- 
banks V.  Kerr,  70  Pa.  86. 

^State  V.  Merritt,  35  Conn.  314;  Pillsbury  v.  Brown,  82  Me.  450. 

*Com.  V.  Nashua  &  L.  B.  Corp.  2  Gray,  56;  Com.  v.  Gowen,  7  Mass.  378; 
State  V.  Mobley,  1  McMull.  L.  44;  State  v.  Atkinson,  24  Vt.  448;  State  v. 
Wilkinson,  2  Vt.  480;  Shaw  Y.Craioford,  10  Johns.  237;  Freeman  v.  State, 
6  Port.  372. 

'^People  V.  Jackson,  7  Mich.  432. 

^Inhabitants  of  Charlotte  v.  Pembroke  Iron  Works  (Me.  Feb.  21, 1890),  8  L.  R. 
A.  828. 

•^Kokomo  V.  Malian,  100  Ind.  242;  Bobert  v.  Sadler,  104  N.  Y.  229. 


Chap,  v.]  ENCROACHMENTS    UPON    HIGHWAYS.  71 

'No  precise  definition  of  wliat  constitutes  a  reasonable  use, 
adapted  to  all  cases,  can  be  laid  down.  Whether  or  not  any  par- 
ticular use  is  reasonable  depends  on  the  character  of  the  highway, 
its  location  and  purposes,  and  the  necessity,  extent  and  duration  of 
the  use,  under  all  the  attendant  and  surrounding  circumstances. 
The  general  limitations  upon  the  use  are  that  when  it  constitutes 
an  obstruction  to  the  highway  it  must  be  of  a  partial  and  tempo- 
rary character,  justified  by  necessity  and  convenience,  and  in  tlie 
ordinary  and  contemplated  use  of  the  highway.  It  must  not  be 
incompatible  with  the  reasonable  free  use  by  others,  who  may  have 
occasion  to  travel  or  transport  over  it ;  and  the  obstruction  must 
not  be  continued  longer  than  the  continuance  of  the  necessity,  and 
a  reasonable  time  for  its  removal.  On  this  principle  a  builder 
may  place  the  materials  for  an  adjacent  structure — a  merchant 
may  place  his  goods — in  a  street,  to  be  removed  in  a  reasonable 
time.  Wagons,  carts  and  other  vehicles  may  stand  in  a  highway 
for  the  temporary  purpose  of  loading  or  unloading.  These  are 
not  considered  unlawful  obstructions  to  a  highway  upon  land. 

Encroachment  on  a  highway  cannot  be  legalized  by  lapse  of 
time,  and  the  public  right  to  its  use  cannot  be  lost  by  negligence 
of  public  ofiicers.'  The  doctrine  is  embodied  in  the  maxim  "  nul- 
lutn  tempus  occurrit  regi^"* ' 

IS'o  length  of  time  will  legitimate  a  nuisance  or  enable  a  party  to 
prescribe  for  its  continuance,'  and  buildings  on  highways  acquire 
no  right  from  time  or  expenditure.*  But  in  some  States  the  right 
thus  to  acquire  title  in  a  public  street  is  recognized,  and  in  Michi- 
gan a  decree  directing  that  the  walls  of  a  building  encroaching  on 
public  streets  be  torn  down  was  reversed,  it  appearing  that  the 
building  had  projected  over  the  line  of  the  street  four  and  one 
half  inches  for  more  than  twenty-five  years.* 

^Tainter  v.  Morristown,  19  N.  J.  Eq.  59;  Cross  v.  Morristown,  18  N.  J.  Eq 

305;  State  v.  Troth,  34  N.  J.  L.  379;   State  v.  Trenton,  36  N.  J.  L.  201; 

Eoboken  L.  &  I.  Co.  v.  Hoboken,  Id.  549;  Humphreys  v.  Woodstown,  48  N.' 

J.  L.  588,  7  Cent.  Rep.  114;  Inhabitants  of  Charlotte  v.  Pembroke  Iron 

Works  (Me.  Feb.  21,  1890)  8  L.  R.  A.  828. 
^Cross  V.  Morristown,  18  N.  J.    Eq.  311;  Stoughton  v.  Baker,  4  Mass.  522; 

Com.  V.  Upton,  6  Gray,  476;  Jac.  Law  Diet,  title  King. 
^People  V.  Cunningham,  1  Denio,  536;  Mills  v.  Hall,  9  Wend.  315;  Dygert 

V.  Schenck,  23  Wend.  448. 
*Com.  V.  Moorehead,  118  Pa.  344,  10  Cent.  Rep.  611;  Tates  v.  Warrenton,  84 

Va.  337;  State  v.  Pumroy,  73  Wis.  664. 
''Big  Rapids  v.  Comstock,  65  Mich.  78,  8  West.  Rep.  136,  and  cases  cited. 


72  IMPOSED    DUTIES,    PERSONAL.  [Part    I. 

One  who  encroaches  upon  a  street  and  contends  that  there  is 
no  street  at  that  place,  or  that  he  has  acquired  title  bj  adverse 
possession,  makes  himself  willfully  guilty  of  such  encroachment.* 

d.  Fiihlic  Kuiscmces  on  Highways. 

If  one  does  or  authorizes  the  doing  of  an  act  creating  a  public 
nuisance,  by  obstructing  a  highway,  he  is  answerable  in  damages 
to  those  suffering  injuries  thereby."  One  who,  in  violation  of  an 
express  statutory  duty,  obstructs  a  public  highway,  cannot  be 
heard  to  say  that  he  did  not  anticipate  an  injury  which  was  the 
direct  result  of  his  unlawful  act,  where  the  person  injured  was 
without  fault.^ 

It  is  the  duty  of  one  who  dedicates  to  the  public  use  a  highway 
to  warn  of  any  nuisance  existing  therein  known  only  to  himself.* 

A  railroad  constructed  across  a  street  in  a  city  by  a  private  per- 
son or  corporation,  pursuant  to  an  unlawful  authority  given  by 
the  city  authorities,  is  a  public  nuisance,^  and  the  use  of  steam  as 
a  motive  power  for  the  movement  of  cars  on  a  highway,  at  a  place 
where  there  is  no  authority  for  such  use,  in  consequence  of  which 
the  property  of  an  abutting  owner  is  depreciated  in  value,  consti- 
tutes a  nuisance.* 

The  use  by  a  railroad  company,  under  authority  of  its  charter,, 
of  a  portion  of  a  street  in  its  ordinary  use  as  a  means  of  travel 
and  transportation  is  not  a  perversion  of  the  highway  from  its 
original  purposes.  Any  damage  to  the  property  abutting  on  the 
street,  resulting  from  such  obstruction,  is  damnum  absque  injuria!! 
Railways  in  streets  of  cities  are  not  nuisances  jper  se^  and  laying 

^CMlds  V.  Nelson,  69  Wis.  125.     But  see  Parsons  v.  State,  26  Tex.  App.  192. 

^Carlin  v.  Driscoll,  50  N.  J.  L.  28,  10  Cent.  Rep.  178. 

^Emnsville  &  T.  H.  B.  Go.  v.  Carvener,  113  Ind.  51,  12  West.  Rep.  204. 

*Byan  v.  Wilson,  87  N.  Y.  471. 

^Glmsner  v.  Anheuser-Busch  Brew.  Asso.  100  Mo.  508. 

^Hassner  v.  Brooklyn  City  B.  Go.  114  N.  Y.  433;  State  v.  Chicago,  M.  &  St. 
P.  B.  Co.  77  Iowa,  442,  4  L.  R.  A.  298. 

■'Porter  v.  North  Mo.  B.  Go.  33  Mo.  128. 

^Hamilton  v.  Neio  York  &  E.  B.  Co.  9  Paige,  171 ;  Drake  v.  Hudson  Biver  B. 
Co.  7  Barb.  508;  Plant  v.  Long  Island  B.  Co.  10  Barb.  26;  Hentz  v. 
Long  Island  B.  Co.  13  Barb.  646;  Milhau  v.  Sharp,  15  Barb.  193;  Will- 
iams V.  New  York  G.  B.  Co.  16  N.  Y.  97;  Davis  v.  New  York,  14  N.  Y. 
506;   Wetmore  v.  Story,  22  Barb.  414. 


Chap,  v.]  PUBLIC    NUISANCES    ON    HIGHWAYS.  73^ 

a  railroad  track  through  the  streets  of  a  city  is  not  sn<"h  an  ol)- 
siraction  as  necessarily  to  amonnt  to  a  nuisance;  and  the  city 
authorities  may  grant  permission  to  a  railway  company  to  lay  such 
a  track.*  So  a  railroad  running  through  the  streets  of  a  city, 
which  does  not  materially  interfere  with  the  use  of  the  streets  for 
ordinary  purposes,  or  injure  the  value  of  the  adjacent  property,  is 
not  a  nuisance.'  Nor  can  a  public  nuisance  arise  from  a  right 
granted  by  law,'  for  it  is  not  a  nuisance  to  do  what  the  law  au- 
thorizes ;  but  it  is  a  tort  to  do  an  authorized  act  in  a  negligent 
manner.*  Therefore  a  railroad  track  laid  upon  a  street  of  a  city 
by  authority  of  law,  properly  constructed  and  operated  in  a  skillful 
and  careful  manner,  is  not  in  law  a  nuisance."  Nor  can  the  owner 
of  an  abutting  lot  prevent  the  use  of  a  street  for  a  railway  when 
such  use  is  permitted  by  the  city  and  is  authorized  by  an  Act  of 
the  Legislature."  It  follows,  of  course,  that  where  the  city  au- 
thorities lawfully  grant  permission  to  locate  railway  tracks  along 
a  street,  the  owners  or  occupants  of  property  fronting  on  such 
street  cannot  enjoin  the  laying  of  such  tracks,  nor  receive  any 
damage  or  compensation  for  such  use  of  a  street,^  and  the  con- 
struction of  a  railroad  will  be  enjoined  for  nothing  short  of  the 
threatened  destruction  of  property  of  great  value,  resulting  in 
irreparable  damage.* 

An  unguarded  area  not  within  the  limits  of,  but  so  near  to,  an 
alley  as  to  endanger  persons  passing  along  the  alley,  is  a  public 
nuisance,'  and  so  is  an  unsecured  covering  to  a  coal-hole.*" 

^Sargent  v.  Ohio  &  M.  B.  Co.  1  Handy  (Ohio),  52. 

^Hamilton  v.  Mw  York  &  H.  R.  Co.  9  Paige,  171. 

^W.  U.  Tel.  Co.  V.  Hewett  (D.  C),  4  Mackey,  424,  2  Cent.  Rep.  695. 

*North  Vernon  v.  Voegler,  103  Ind.  314,  1  West.  Rep.  560. 

^Bandle  v.  Pacific  B.  Co.  65  Mo.  332;  Danville,  H.  &  W.  B.  Co.  v.  Com.  7a 
Pa.  38;  Chicago  &  E.  I.  B.  Co.  v.  Loeb,  118  111.  203,  5  West.  Rep.  893. 

^Stetson  V.  Chicago  &  E.  B.  Co.,  75  111.  74;  Indianapolis,  B.  dt  W.  B.  Co.  v. 
Hartley,  67  111.  439. 

''Moses  V.  Pittsburgh,  F.  W.  &  C.  B.  Co.  21  111.  516;  Louisville  &  F.  B.  Co. 
V.  Brown,  17  B.  Mon.  763.     But  see  Chapter  VI.,  following. 

^Dodge  v.  Pennsylvania  B.  Co.  43  N.  J.  Eq.  351,  10  Cent.  Rep.  655. 

^Bo7id  V.  Smith,  44  Hun,  219;  Crogan  v.  Schiele,  53  Conn.  186,  1  New  Eng. 
Rep.  305;  Stuart  v.  Ravens,  17  Neb.  211;  Beck  v.  Carter,  68  N.  Y.  283 ; 
Hayes  v.  Michigan  C.  B.  Co.  Ill  U.  S.  228,  28  L.  ed.  410;  Hadley  v.  Tay- 
lor, L.  R.  1  C.  P.  53;  Wettor  v.  Bunk,  4  Fost.  &  F.  298. 

^oQalvin  v.  Mw  York,  112  N.  Y.  233;  Jennings  v.  Van  Schaick,  13  Daly^ 
438;  Dalay  v.  Savage,  145  Mass.  38;  Calder  v.  Smalley,  06  Iowa,  219;  Ir- 
win V.  Fowler,  5  Robt.  483;  Tomle  v.  Hampton,  139  111.  379. 


/4  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

♦ 

The  use  of  parts  of  certain  streets  and  sidewalks  in  front  of 
a  dwelling-honse,  by  hucksters,  as  a  market  place,  by  permission  of 
the  city  officers  on  payment  of  a  license  fee,  constitutes  not  only  a 
public  nuisance,  but,  as  to  the  owner  and  tenants  occupying  it,  a 
private  nuisance,  entitling  those  aggrieved  to  an  injunction  against 
the  city  as  the  wrong-doer.' 

If  the  owner  of  the  soil  lays  out  a  street  on  his  land  between  high 
and  low  water  mark,  the  right  to  use  it  becomes  appurtenant  to  the 
lands  of  the  adjoiners ;  and  anything  which  obstructs  such  right 
is  a  nuisance."  A  gate  and  shed  erected  on  an  alley  after  a  grant  of 
land  to  which  it  was  made  appurtenant,  without  the  grantee's  con- 
sent, are  properly  assumed  nn\sances 2Jer  se,  in  case  of  their  continu- 
ance after  a  former  verdict  on  the  case  for  their  erection  ;  and 
the  grantee  may  recover  damages  for  their  continuance  after  the 
former  recovery,  although  they  do  not  materially  interfere  with 
his  use  of  the  alley.* 

Whe]'e  teamsters  sj)end  their  idle  time,  with  their  horses  and 
wagons,  in  a  public  street  in  front  of  a  private  dwelling,  to  such 
an  extent  that  noxious  odors  are  created  which  are  carried  into 
the  dwelling,  it  is  an  unlawful  use  of  the  street,  and  will  be  en- 
joined;  and  complainant's  motives  cannot  be  inquired  into;*  nor 
may  hacks  occupy  such  space  creating  annoyance  to  persons  in 
private  dwellings  f  nor  may  any  person  attract  crowds  and  in- 
terrupt business  f  nor  may  cars  obstruct  the  way  before  resi- 
dences unnecessarily.'' 

The  highway  may  be  a  convenient  place  for  the  owners  of  car- 
riages to  keep  them  in,  but  the  law,  looking  to  the  convenience  of 
the  greater  number,  prohibits  any  such  use  of  the  public  streets. 
The  old  cases  said  the  king's  highway  is  not  to  be  used  as  a  stable 
yard,  and  a  party  cannot  eke  out  the  inconvenience  of  his  own 

^McDonald  v.  Newark,  43  N.  J.  Eq.  136,  5  Cent.  Rep.  647. 

^Richardson  v.  Boston,  60  U.  S.  19  How.  263,  15  L.  ed.  639. 

^EUis  V.  American  Academy  of  Music,  120  Pa.  608. 

*Lippincoa  v.  Lasher,  44  N.  J.  Eq.  130,  12  Ceat.  Rep.  238. 

^McCaffrey  v.  Smith,  41  Hun,  117. 

*Jaqiies  v.  National  Exhibit  Co.  15  Abb.  N.  C.  250;   Williams  v.  Tripp,   11 

R.  I.  447. 
''Angel  v.  Pennsylvania  B.  Co.  38  N.  J.  Eq.  58;  Hopkins  v.  Western  P.  R.  Go. 

50  Cal.  190. 


Chap.  Y.]  PUBLIC  nuisances;  abatement  of.  75 

premises  by  taking  in  the  public  higliway.     These  general  state- 
ments are  familiar  and  borne  out  by  the  cases.* 

Sliding  in  a  street,  accompanied  by  boisterous  conduct  liable  to 
frighten  horses  traveling  therein,  may  be  a  public  nuisance ;  but 
one  damaged  thereby  must  show  that  it  was  the  proximate  cause 
of  his  damage,  to  enable  him  to  recover  from  one  creating  it.' 


e.  Tiiblic  JVuisances ;  Al>ateinent  of. 

A  public  nuisance  can  only  be  redressed  by  a  public  prosecu- 
tion, unless  the  party  complaining  suffers  some  peculiar  damages 
differing  in  kind  from  those  sustained  by  the  public  at  large.' 

The  general  rule  is  that  individuals  are  not  entitled  to  redress 
against  a  public  nuisance.  The  private  injury  is  merged  in  the 
common  nuisance  and  injury  to  all  citizens,  and  the  right  is  to  be 
vindicated  and  the  wrong  punished  by  a  public  prosecution,  and 
not  by  a  multiplicity  of  separate  actions  in  favor  of  private  per- 
sons.* If  the  complainant  can  show  that  the  construction  and 
maintenance  of  a  railway  in  front  of  his  premises  will  result  only 
in  special  injury  to  him,  his  remedy  will  be  at  law  for  the  special 

^Cohen  v.  New  York,  113  N,  Y.  536.  4  L,  R.  A.  406;  Rex  v.  Rimell,  6  East 
437;  Rex  v.  Cross,  3  Camp.  224;  Rex  v.  Jonea,  3  Camp.  230;  People  v! 
Cunningham,  1  Denio,  524;  Davis  v.  New  York,  14  N.  Y.  524-  Callanan 
V.  Oilman,  107  N.  Y.  360,  9  Cent.  Rep.  900. 

'Jackson  v.  Castle,  80  Me.  119,  5  New  Eng.  Rep.  857. 

^ScJmoI  District  No.  1  v.  Neil,  36  Kan.  617. 

*Wesson  V,  Washburn  Iron  Co.  13  Allen,  95, 101 ;  Stetson  v.  Faxson,  19  Pick 
147;  Thayer  V.  Boston,  19  Pick.  511,  514;  Borden  v.  Vincent,  24  Pick.  301- 
Quimy  Canal  Co.  v.  Newcomb,  7  Met.  276,  283;  Holman  v.  Towmerid  13 
Met.  297,  2^Q;Brainard  v.  Conn.  River  R.  Co.  7  Cush.  506,  511;  Harvard 
College  v.  Stearns,  15  Gray,  1 ;  Fall  River  Iron  Works  Co.  v.  Old  Colony  <$■ 
F.  B.  R.  Co.  5  Allen,  224;  Shaubut  v.  St.  Paul  &  S.  G.  R.  Co.  21  Minn 
502;  Qrigsbyv.  Clear  Lake  Water  Works  Co.  40  Cal.  396;  Gordon  y  Barter 
74  N.  C.  470;  Re  Eldred,  46  Wis.  530,  541;  Hatch  v.  Vermont  C.  R.  Co  28 
Vt.  142;  Low  V.  Knowlton,  26  Me.  128;  Lansing  v.  Smith,  8  Cow.  146  4 
"Wend,  9;  Lansing  v.  Wiswall,  5  Denio,  213,  5  How.  Pr.  77;  Foi-t  Plain 
Bridge  Co.  v.  Smith,  30  N.  Y.  4:^;  Anderson  y .  Rochester,  L.  i&N.  F.  R.  Co. 
9  How.  Pr.  553;  Dougherty  v.  Bunting,  1  Sandf.  1;  Osbornv.  Union  Ferry 
Co.  53  Barb.  629;  State  v.  Thompson,  2  Strobh.  L,  (S.  C.)  12;  Georgetown 
St.  Comrs.  v.  Taylor,  2  Bay  (S.  C.)  282;  Harrison  v.  Sterrett,  4  Harr  «& 
McH.  546;  Flynn  v.  Canton  Co.  40  Md.  312;  Walter  v.  Wicomio>  Co  35 
Md.  385;  South  Carolina  R.  Co.  v.  Moore,  28  Gu.  398;  Jifor^aw  v.  Graham 
1  Woods,  124;  Lewiston  Tump.  Co.  v.  Shasta  &  W.  Wagon  Road  Co  41 
Cal.  562;  Gould,  Waters,  222. 


76  IMPOSED   DUTIES.  PERSONAL.  [Part   I. 

damage,  and  not  by  injunction.*  The  remedy  for  obstruction  of 
a  highway  is  an  action  by  the  town."  At  common  law  the  rem- 
edy is  by  indictment.' 

Where  the  town  authorities  suffered  a  fence  to  remain  across  a 
street  until  there  seemed  to  them  a  need  for  its  public  use,  the 
fence  should  be  removed  ;  all  erections  put  upon  the  street  are 
mere  encroachments  made  by  parties  at  their  peril,  and  may 
be  removed  by  the  town  authorities." 

Under  the  Mississippi  statutes  the  board  of  mayor  and  alder- 
men of  the  town  has  jurisdiction  to  order  the  removal  of  a  fence 
across  a  street.^ 

If  timber  standing  upon  a  roadway  obstructs  or  impairs  the  use 
of  the  road  by  the  public,  it  is  the  duty  of  the  overseer  of  the 
road  to  have  it  removed ;  and  the  overseer's  authority  is  sufficient 
to  protect  another,  whom  the  overseer  permitted  to  cut  the  timber, 
against  all  criminal  liability.' 

An  action  to  abate  a  nuisance  caused  by  obstructing  the  high- 
way, under  the  California  Political  Code,  as  amended,  is  properly 
brought  in  the  name  of  the  overseer  of  the  road  district  wherein 
the  obstruction  exists.' 

Abatement  of  nuisance  is  under  police  power  of  States.* 

f.  Injunction  to  Restrain  JYuisances  in  Streets. 

A  municipality,  having  the  control  and  supervision  of  the  pub- 
lic hio-hways  within  its  territorial  limits,  may  maintain  a  suit  in 
equity  to  prevent  any  alteration  of  the  streets,  or  injury  to  them, 
which  will  deprive  the  public  of  their  use.'     The  mayor  and  com- 

^  Osborne  v.  Brooklyn  City  R.  Co.  5  Blatchf.  366;  Currier  v.  West  Side  E.  P. 
Co.  6  Blatcbf.  487;  Morris  &  E.  B.  Co.  v.  Prudden,  20  N.  J.  Eq.  530; 
Zabriskie  v.  Jersey  City  &  B.  R.  Co.  13  N.  J.  Eq.  314;  HincTimanv.  Pater- 
son  Horse  R.  Co.  17  N.  J.  Eq.  75;  Chicago  v.  Union  Bldg.  Asso.  102  111. 
879;  Lorie  v.  Noi-th  Chicago  City  R.  Co.  32  Fed.  Rep.  27. 

Weerfield  v.  Conn.  River  R.  Co.  144  Mass.  325,  4  New  Eng,  Rep.  189. 

^Ronayne  v.  Loranger,  66  Mich.  373,  10  West.  Rep.  523;  R^spublica  v.  Ar- 
nold, 3  Yeates,  417;  3  Bl.  Com.  chap.  13;  1  Chitty,  Pr.  383.  See  Camp- 
bells. Pennsylvania  S.  V.  R.  Co.  (Pa.  March  5,  1888)  11  Cent.  Rep.  660. 

*Lake  View  v.  Le  Bahn,  120  111.  92,  6  West.  Rep.  786. 

^Mxon  V.  Bilaxi  (Miss.  Feb.  25,  1889)  5  So.  Rep.  621. 

^Cooper  V.  Langioay,  76  Tex.  121. 

•'Bailey  v.  Bale,  71  Cal.  34. 

8 See  note  to  Pine  City  v.  Munch  (Minn.  .Jan.  14,  1890)  6  L.  R.  A.  763. 

^Jersey  City  v.  Central  B.  Co.  40  N.  J.  Eq.  417,  4  Cent.  Rep.  327. 


Chap.  Y.]       INJUNCTION    TO    KESTKAIN    NUISANCES    IN    STREETS.         77 

men  council  are  proper  persons  to  file  a  bill  to  prevent  obstruction 
or  destruction  of  streets.' 

For  an  obstruction  to  a  pnblic  highway  an  injunction  is  not  a 
favored  remedy,  whether  souglit  by  the  public  or  an  individual. 
To  justify  its  issue  at  the  suit  of  an  individual,  the  injury  must  be 
special,  pressing  and  otlierwise  irremediable ;  and,  as  a  condition 
to  the  issue  of  permanent  injunction,  the  right  must  either  not  be 
in  controversy  or  have  been  settled  at  law.^  Even  in  the  case  of 
an  obstruction  to  a  public  street  amounting  to  a  public  nuisance, 
the  court  of  chancery  is  loath  to  act  by  injunction.*  The  real 
injury  is  to  the  public,  if  there  be  any  injury ;  private  persons 
cannot  sustain  their  suit  unless  they  show  clearly  a  sj)ecial  and 
peculiar  damage,  distinct  from  that  suffered  by  the  public  at  large.* 
The  official  action  of  corporate  officers  should  not  be  interfered 
with  or  restrained  unless  it  be  injurious  and  wrongful  in  its  nat- 
ure, especially  where  the  parties  aggrieved  have  an  adequate 
remedy  at  law  and  the  pecuniary  responsibility  of  the  defendants 
is  unquestioned.*  If  the  right  of  the  public  to  the  use  of  a  high- 
way is  clear,  and  a  special  injury  is  threatened  by  an  obstruction 
of  the  highway,  and  this  special  injury  is  serious,  reaching  the 
very  substance  and  value  of  the  plaintiff's  estate,  and  is  permanent 
in  its  character,  a  court  of  equity  by  an  injunction  ought  to  pre- 
vent such  a  nuisance." 

^Newark  v.  Delaware,  L.  &  W.  B.  Co.  43  N.  J.  Eq.  196,  5  Cent.  Rep.  629. 

Urwin  v.  Dixion,  50  U.  S.  9  How.  10.  13  L.  ed.  35. 

^Pavonia  Land  Asso.  v.  Feenfer  (N.  J.  Jaa.  3,  1887)  5  Cent.  Rep.  640. 

^Wheeler  v.  Bedford,  54  Conn.  246,  3  New  Eng.  Rep.  831;  O'Brien  v.  Nor- 
wich &W.  B.  Co.  17  Conn.  375;  Frink  v.  Lawrence,  20  Conn.  120;  Clark 
V.  Saybrook,  21  Conn.  313,  327;  Lexinglon  &  0.  B.  Co.  v.  Applegate,  8 
Dana,  299;  McKeon  v.  See,  4  Robt.  466;  Gilbert  v,  Mickle,  4  Sandf.  Ch. 
357,  7  N.  Y.  Ch.  L.  ed.  1132. 

^Davis  V.  Amer.  Society  for  Prev.  Cruelty  to  Animals,  6  Daly,  85,  16  Abb. 
Pr.  N.  S.  78;  Sterman  v.  Kennedy,  15  Abb.  Pr.  201;  Moore  v.  Pilot 
Comrs.  33  How.  Pr.  184;  Prendorill  v.  Kennedy,  34  How.  Pr.  416. 

■^Keystone  Bridge  Co.  v.  Summers,  13  W.  Va.  485;  Mohaick  Bridge  Co.  v. 
Utica  &  S.  B.  Co.  6  Paige,  563,  3  N.  Y.  Ch,  L.  ed.  1103;  Jerome  v.  Boss, 
7  Johns.  Ch.  323,  3  N.  Y.  Ch.  L.  ed.  308. 


CHAPTER  yi. 

INVASION  OF  EASEMENT  IN  STREET. 

Sec.  13.  Private  Right  of  Action  for  Injury  to  Easement  in  High- 
way. 

a.  Easement  of  Lot  Oioner  in  Street. 

b.  Street  Railroad.  —  Grant  of  Privilege. 

c.  Steam  Street  Railroad — Excluded. 

d.  Permitted. 

e.  Fee  of  Street  in  the  Public. — Release. 
t   Electric  Motors. 

g.   Telegraph  and  Telephone  Poles. 

Ji.  Drains  and  Electric,  Gas  and  Water  Conductors. 


Section  12. — Private  Right  of  Action  for  Injury  to 
Easement  in  Highway. 

A  special  and  peculiar  injury  irreparable  in  its  nature,  and  dif- 
ferent in  kind  from  that  sustained  by  the  general  public,  is  nec- 
essary to  give  a  private  right  of  action  for  a  public  nuisance.'  In 
the  case  of  a  public  nuisance,  it  does  not  follow  that  suit  can- 
not be  brought  by  a  private  person,  because  the  State,  at  the  rela- 
tion of  the  law  officer,  can  bring  suit.  Personal  wrongs  may  be 
both  public  and  private,  in  which  case  the  individual  injured  has 
his  action." 

An  action  will  lie  against  an  individual  or  private  corporation 
maintaining  a  nuisance,  by  one  who  has  suffered  special  damage 
therefrom,^  but  an  individual  can  only  maintain  an  action  for  dam- 
ages by  reason  of  a  nuisance  when  some  right  of  his  own  has 
been  invaded.*  A  nuisance  may  be  both  public  and  private  in  its 
character,  and,  in  so  far  as  it  is  private,  the  person  who  suffers  a 

^Fogg  V.  Nevada  G.  0.  B.  Co.  20  Nev.  429. 

^Oummings  v.  St.  Louis,  90  Mo.  259,  7  West.  Rep.  274;  McDonald  v.  Netcark, 

42  N.  J.  Eq.  136,  5  Cent.  Rep.  649. 
^Mehrhof  Bros.  Brick  Mfg.  Co.  Y.Delaware,  L.  &  W.  B.  Co.  51  N.  J.  L.  56. 
*Henry  v.  Newburyport,  149  Mass.  583,  5  L.  R.  A.  179. 


Chap.  VI.]  PRIVATE    RIGHT    OF    ACTION.  Yl> 

special  damage  therefrom  has  a  riglit  of  action.'  Tlic  special 
damage  must  be  beyond  that  which  is  suffered  in  common  with 
the  public."  One  who  suffers  special  injury,  no  matter  how  in- 
considerable, from  a  common  nuisance,  may  recover  damages,  in 
an  action  at  law,  from  the  person  creating  it,"  and  from  the  per- 
son maintaining  it  after  request  to  abate  it.*  But  for  any  act  ob- 
structing a  common  and  public  riglit  no  action  will  lie  for  private 
damages  of  the  same  kind  as  those  sustained  by  the  general  public, 
though  in  a  much  greater  degree.^  In  case  of  public  nuisance, 
the  plaintiff  must  aver  special  damages  to  him,  inasmuch  as  the 
law  does  not  presume  or  imply  damage  to  any  particular  indi- 
vidual from  the  public  offense."  Damages  may  be  recovered  for 
a  peculiar  private  injury  caused  thereby,  though  a  like  injury  is 
sustained  by  numerous  other  persons.''  It  is  not  enough  that  in- 
jury is  shown,  but  it  must  be  different  in  kind  from  that  sustained 

^ParkY.  Chicago  &  S.  W.  B.  Co.  43  Iowa,  636;  Crommelin  v.  Coxe,  30  Ala 
318;  Abbott  v.  Mills,  3  Vt.  521;  Mills  v.  Hall,  9  Wend.  315;  Myen.  v.  Mal- 
colm, 6  Hill,  292;  Hay  v.  Cohoes  Co.  3  Barb.  48;  Fort  Plain  Briilqe  Co  v 
Smith,  30  N.  Y.  62;  Welton  v.  Martin,  7  Mo.  307;  Orirjsby  v.  Clear  Lake 
Water  Works  Co.  40  Cal.  396;  Venard  v.  Cross.  8  Kan.  248;  Clark  v.  Peck- 
ham,  10  R.  I.  35;  Greene  v.  Nunnemacher,  36  Wis.  50;  Spencer  v.  London 
&  B.  R.  Co.  8  Sim.  193;  Sampson  v.  Smith,  8  Sim.  272;  Cook  v.  Bath,  L. 
R.  6Eq.  177;  Hickok  v.  Hine.  23  Ohio  St.  523;  Mississippi  &  31.  R.' Co. 
V.  Ward,  67  U.  S.  2  Black,  485,  17  L.  ed.  311;  Irwin  v.  JJlxion,  30  U.  S. 
9  How.  10,  13  L.  ed.  25;  Parker  v.  Winnipiseogee  Lake  C.  &  W.  Mfg.  Co. 
67  U.  S.  2  Black,  545,  17 L.  ed.  333;  Pennsyhania  v.  Wlieeling  &  B.  Bridq'e 
Co.  54  U.  S.  13  How.  518,  561,  14  L.  ed.  249,  267;  Eicdl  v.  Greenwood,  26 
Iowa,  377;  Musser  v.  Hershey,  42  Iowa,  356;  Works  v.  Junction  R.  Co.  5 
McLean,  425;  Vnited  States  v.  Railroad  Bridge  Co.  6  McLean,  517;  Spoon- 
er  V.  McConnell,  1  McLean,  337;  Treat  v.  Bates,  27  IMich.  390;  Walker  v. 
Shepardson,  2  Wis.  384,  4  Wis.  486;  Hamilton  v.  Whitridge,  11  ]VId.  128; 
Columbus  V.  Jaques,  30  Ga.  506;  Savannah,  A.  &  G.  R.  Co.  v.  Shields,  33 
Ga.  601;  Potter  v.  Menasha,  30  Wis.  492;  Draper  v.  Mackey,  35  Ark.  497; 
Adams  Y.  Popham,  76  N.  Y.  410;  Sparhawk  v.  Union  Passenger  R.  Co'. 
54  Pa.  401;  Princes.  McCoy,  40  Iowa,  533;  Manhattan  Gaslight  Co.  v. 
Barker,  36  How.  Pr.  233;  Penniman  v.  N.  T.  Balance  Co.  13  How.  Pr. 
40;  Parrish  v.  Stephens,  1  Or.  73;  Shed  v.  Hawthorn,  3  Neb.  185;  Kittle 
V.  Fremont,  1  Neb.  329;  Gould,  Waters,  218;  3  Sutherland,  Damages,  423. 

^Dudley  v.  Kennedy,  63  Me.  465;  Yolo  Co.  v.  Sacramento,  36  Cal.  193;  Co- 
burn  V.  Ames,  52  Cal.  385;  Cok  v.  Sprowl,  35  Me.  161;  Harriion  v. 
Sterett,  4  Har.  &  McH.  540;  Runyon  v.  Bordine,  14  N.  J.  L.  472;  Baxter 
V.  Winooski  Tump.  Co.  22  Vt.  114;  Hatch  v.  Vermont  C  R.  Co.  28  Vt. 
142;  Brown  v.  Watson,  47  Me.  161;  3  Sutherland,  Damages,  424. 

*Brown  v.  Watson,  47  Me.  161 ;  Dudley  v.  Kennedy,  63  Me.  465. 

*Pilhbury  v.  Moore,  44  Me.  154;  Holmes  v.  CortMl,  80  Me.  31.  5  New  Ene. 
Rep.  794.  ^ 

'Whiisett  v.  Union  D.  &  R.  Co.  10  Colo.  243. 

^Hartt  V.  Evans,  8  Pa.  13;  1  Sutherland,  Damages,  766. 

"'Francis  v.  Schoellkopf,  53  N.  Y.  152;  Soltau  v.  DeHeld,  2  Sim.  N.  S.  133. 


80  IMPOSED   DUTIES,  PEESONAL.  [Part    I. 

Ijy  the  community  at  large.'  The  particular  damage  is  the  gist  of 
the  action,  and  must  be  specially  set  forth  in  the  declaration."  In 
Xew  York  any  expense  or  delay,  however  trifling,  incurred  by 
one  member  of  the  public  in  removing  an  unlawful  obstruction 
in  a  highway  has  been  held  to  be  ground  for  an  action.' 

The  construction  and  use  of  gas-works,  the  percolations  from 
the  refuse  of  which  pollute  and  make  the  water  in  the  wells  of  an 
adjoining  land  owner  unfit  for  household  purposes  and  for  the  use 
of  stock,  is  a  nuisance,  and  the  party  injured  is  entitled  to  damages." 

If  the  water  of  a  well  is  rendered  impure  by  an  escape  of  gas 
therein,  the  fact  that  other  causes  contributed  to  make  it  unfit  for 
use  is  not  a  bar  to  an  action,  but  may  be  shown  to  affect  the 
amount  of  damages."  Petroleum  oil,  like  subterranean  water,  is 
included  in  the  idea  which  the  law  attaches  to  the  word  "  land," 
and  is  a  part  of  the  soil  in  which  it  is  found.' 

Where  a  wall  to  prevent  the  earthwork  of  a  street  from  en- 
croaching upon  adjoining  premises  is  a  part  of  the  plan  approved 
by  the  common  council  for  the  improvement  of  a  street,  and  no 
error  of  the  judgment  or  discretion  of  the  council  in  aj)proving  it 
is  shown,  or  any  defect  in  the  construction,  no  recovery  can  be  had 
on  account  of  the  inconvenience  occasioned  by  it.'' 

In  trespass  for  encroachment  upon  a  highway,  where  defendant 
gives  notice  that  he  will  prove  location  of  the  fence  to  be  upon 

^HoucJcv.  Wachter,  34  Md.  265;  ScJiall  v.  Nusbaum,  56  Md.  513;  Gilbert  v. 

Morris  Canal  <&  Bkg.  Go.  8  N.  J.  Eq.  495. 
^Baker  v.  Boston,  12  Pick.   184,    196;    Atkins  v.   Boardman,  2  Met.  457; 

Houck  V.  Wachter,  34  Md.  265;  Baxter  v.  Winooski  Tump.    Go.  22  Vt. 

114;  Hall  v.  Kitson,  4  Chand.  (Wis.)  20;  Greene  v.   Nunnemarlier ,  36 

Wis.  50;    Powers  v.  Bnsh,  23  Midi.  429;  DwinelY.  Venzie,  44  Me.  167, 

175;  Memphis  &  0.  B.  Co.  v.  Hicks,  5  Sneed,  427;   Boseburg  v .  Abraham, 

8  Or.  509;  Farrellyv.  Cincinnati,  2  Disn^j  (01iio)516;  Taylor  y.  Monroe, 

43  Coun.   36;    Tomlinson  v.   Derby,  43  Conn.   562;    South    Carolina  v. 

Georgia,  93  U.  S.  4,  14,  23  L.  ed.  782,  785;  Smith  v.  McConathy,  11  Mo. 

517;  Payne  v.  McKinley,  54  Cal.  532. 
*Pierce  v.  Dart,  7  Cow.  609;  Lansing   v.  Wiswall,  5  Denio,  213;  Lansing  v. 

Smith,  4  Wend.  9,  8  Cow.  146;  Hudson  Ricer  B.  Co.  v.  Loeb,  7  Robt.  418. 
*Penmcola   Gas  Co.  v.  Pebley  (Fla.  Feb.  5,  1889)  5  So.  Rep.  593.     But  see 

Dillonv.  Acme  Oil  Co.  49  Hun,  565. 
^Sherman  v .  Fall  River  Iron  Works  Co.  5  Allen,  213. 
*Hail  V.  Reed,  15  B.  Mon.  479;  Kiev  v.  Peterson,  41  Pa.  357;  Peterson  v.  Kier, 

2  Pittsb.  Rep.  191;  Chicago  &  A.  Oil  &  Min.  Co.  v.  JJ.  8.  Petroleum  Co.  57 

Pa.  83;  Stoughton's  App.  88  Pa.  198. 
"Watson  V.  Kingston,  114  N.  Y.  88. 


Chap,  yi.]  EASEMENT    OF    LOT    OWNER    IN    STREET.  81 

his  own  soil,  title  to  the  soil  is  in  issue.'  Until  service  upon  liini 
of  an  order  locating  the  encroachment,  defendant  need  not  serve 
a  notice  denying  existence  of  the  highway.^ 

A  petition  in  trespass  against  a  railway  company,  for  heaping 
up  earth  on  land  outside  its  right  of  way,  need  not  aver  neg- 
ligence.' As  against  the  owner  of  the  soil  over  which  a  street 
passes,  a  trespasser  cannot  set  up  as  a  defense  the  existence  of  an 
easement  which  the  public  or  a  third  person  may  liave  in  the 
premises.* 


a.  Easement  of  Lot  Owner  in  Street. 

One  whose  only  means  of  ingress  to  and  egress  from  build  in  o-s 
on  his  lauds  is  by  a  public  alley  or  highway  has  such  a  special  in- 
terest in  the  way,  not  common  to  the  public  generally,  as  entitles 
him  to  maintain  a  private  action  for  damages  for  the  obstruction 
of  the  highway.^  But  the  fact  that  adjoining  owners  have  more 
occasion  to  use  the  street  in  front  of  them  than  most  others  have, 
and  that  the  inconvenience  and  annoyance  to  them  from  a  nui- 
sance created  by  a  railroad  in  the  street  is  greater  in  degree  than 
it  is  to  other  citizens,  does  not  authorize  a  private  right  of  action.' 
Nor  is  an  adjacent  owner  entitled  to  any  damages  for  the  ob- 
struction of  a  highway  on  the  ground  merely  of  inconvenience  in 
passing  along  the  way.' 

In  Adams  v.  Chicago,  B.  &  N.  R.  Co.,  39  Minn.  286, 1  L.  E.  A. 
493,  is  a  clear  and  forcible  presentation  of  the  interest  of  the  lot 
owner  in  the  street.  It  is  said  that  there  are  a  great  many  cases 
in  which  is  stated,  in  general  terms,  the  proposition  that,  althouo-h 
the  fee  of  the  street  be  in  the  State  or  municipality,  the  owner  of 
an  abutting  lot  has,  as  appurtenant  to  his  lot,  an  interest  or  ease- 

'  Wsburn  v.  Longsduff,  70  Mich.  127,  14  "West.  Rep.  212. 

^McCord  V.  DonipTian  B.  B.  Co.  21  Mo.  App.  92,  3  West.  Rep,  395. 

*Hurley  v.  Mississippi  &  B.  B.  Boom  Co.  34  jMinn.  143. 

^Fassion  v.  Landrey  (Ind.  April  5,  1890)  24  N.  E.  Rep.  96;  Emnsville  v.  Page, 
23  Ind.  525;  Indianapolis  v.  Kingsbury,  101  lud.  200;  2  Dill.  Muu.  Corp. 
(3d  ed.)  §  640. 

*Fogg  V.  Nevada  C.  0.  B.  Co  20  Nev.  429. 

^McDonneU  v,  Cambridge  B.  Co.  151  Mass.  159. 

6 


82  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

ment  in  the  street  in  front  of  it,  which  is  entirely  distinct  from 
the  interest  of  the  public* 

In  Grand  Rapids  &  I.  R.  Co.  v.  Heisel,  38  Mich.  62,  the  su- 
preme court  states  it  thus:  "  Every  lot  owner  has  a  peculiar  inter- 
est in  the  adjacent  street,  which  neither  the  local  nor  general 
public  can  pretend  to  claim;  a  private  right  in  the  nature  of  an 
incorporeal  hereditament,  legally  attached  to  his  contiguous 
ground  ;  an  incidental  title  to  certain  facilities  and  franchises 
which  is  in  the  nature  of  property,  and  which  can  no  more  be- 
apj)ropriated  against  his  will  than  any  tangible  property  of  which 
he  may  be  owner.'"* 

Although  the  proposition  was  apparently  stated  with  care  and 
upon  deliberation,  it  is  suggested  that  the  decision  of  the  case  was 
a  departure  from  the  doctrine  thus  laid  down — and  the  same  may 
be  said  of  several  of  the  cases  referred  to ;  for  where  the  railroad 
was  laid  upon  a  part  of  the  street  opposite  the  party's  lot,  of  which 
part  he  did  not  own  the  fee,  it  denied  his  right  to  recover  for 
damages  caused  to  his  lot  incidental  to  a  proper  operating  of  the 
railroad,  and  limited  it  to  cases  where  the  acts  of  the  company,, 
of  omission  or  commission,  amounted  to  a  nuisance. 

As  the  lot  owner  can  recover  for  a  private  nuisance  committed 
by  the  improper  operation  of  a  railroad,  even  on  the  company's 
own  land,  in  which  he  has  no  interest,'  it  would  seem,  it  is  said, 
if  he  is  in  no  better  plight  in  respect  to  the  company's  acts  in  the- 
street,  that  his  "peculiar  interest,"  distinct  from  that  of  the  public,' 
in  the  street  is  of  very  little  value.  His  title  to  his  interest  in  the 
street  is  precarious,  if  authority  from  the  State  or  municipality 

^  Grand  Rapids  &  I.  B.  Co.  v.  Heisel,  38  Mich.  62;  Lexington  &  0.  R.  Co.  v. 
Applegaie,  8  Dana,  294;  Elimbethtown,  L.  &B.  S.  R.  Co.  v.  Combs,  10  Bush, 
382;  HaynesY.  TJiomas,  llndi.  38;  Protzmanv.  Indianapolis  &  G.  R.  Co.  9" 
Ind.  467;  Stone  v.  Fairbury,  P.  &  N.  W.  R.  Co.  68  111.  394;  Tate  v.  Ohio 
&  M.  R.  Co.  7  Ind.  479;  Lackland  v.  Nortli  Missouri  R.  Co.  31  Mo.  180; 
Cincinnati  &  S.  G.  Ave.  St.  R.  Co.  v.  Cwmminsville,  14  Ohio  St.  523;  Scioto 
Valley  R.  Co.  v.  Lawrence,  38  Ohio  St.  41;  Crawford  v.  Delaware,  7  Ohio 
St.  459;  Denver  v.  Bayer,  7  Colo.  113;  Rensselaer  v.  Leopold,  106  Ind. 
29,  3  West  Rep.  874;  Griffin  v.  Shreveport  &  A.  R.  Co.  41  La.  Ann.  808. 

'See  also  Atchison  St.  R.  Co.  v.  Nave,  38  Kan.  752;  Fogg  v.  Nevada  0.  0.  R. 
Co.  20  Nev.  429;  Neitzey  v.  Baltimore  &  P.  R.  Co.  5  Mackey,  34,  3  Cent. 
Rep.  773;  Jackson  v.  Kiel,  13  Colo.  378,  6  L.  R.  A.  254;  Lexington  &  O. 
R.  Co.  V.  Appjlegate,  8  Dana,  294;  Elizabethtoicn,  L.  &B.  8.  R.  Co.  v.  Combs, 
10  Bush,  382;  Haynes  v.  Thomas,  7  Ind.  38;  Protzman  v.  Indianapolis  <k 
C.  R.  Co.  9  Ind.  467;  Stone  v.  Fairbury,  P.  &  N.  W.  R.  Co.  68  111.  394. 

^Baltimore  &  P.  B.  Co.  v.  First  Baptist  Church,  108  U.  S.  317,  27  L.  ed.  739. 


Chap.  VI.]  EASEMENT    OF    LOT    OWNER    IN    STREET. 


83 


may  jnstify  what  would  without  such  authority  be  a  private 
wrono-  as  to  him.  JSTone  of  the  cases,  till  we  come  to  what 
are  known  as  the  Elevated  Railway  Cases,  attempt  to  define  the 
limits  and  extent  of  the  right  of  an  abutting  lot  owner  in  the 
street  opposite  his  lot,  where  he  does  not  own  the  fee.  That  it 
extends  to  purposes  of  ingress  and  egress  to  and  from  his  lot  is 
conceded  by  all.  And  for  this  purpose  it  may  extend  beyond  the 
part  of  the  street  directly  in  front;  for,  an  action  by  him  will  lie 
for  obstructing  the  street,  away  from  his  lot,  so  as  to  cut  off  or 
materially  interfere  with  his  only  access  to  it. 

The  questions  are  then  asked.  How  does  the  lot  owner  get  an 
easement  in  the  street?  "What  are  the  source  and  evidence  of  his 
title  to  his  peculiar  interest?  And  the  same  questions  may  be 
asked  with  respect  to  the  right  or  interest  of  the  public.  When 
a  street  is  established  by  statutory  dedication  or  proceedings  of 
condemnation,  the  public  derives  its  right  through  the  dedication 
or  proceedings,  and  the  record  of  them  is  the  evidence  of  its  right. 
"When  the  dedication  is  at  common  law,  the  evidence  of  the  pub- 
lic right  rests  in  parol.  "When  the  offer  of  dedication  is  made, 
and  is  accepted  and  acted  upon  by  the  public  to  such  extent  that 
to  permit  the  offer  to  be  withdrawn  would  operate  as  a  fraud,  the 
title  of  the  public  to  its  right  is  completely  vested.  And  such 
title  is  none  the  less  perfect  because  there  may  be  no  express  grant 
of  the  right,  and  no  written  evidence  of  it.  The  private  right  is 
vested  by  the  same  proceedings  or  acts  that  vest  the  public  right. 
There  is  no  need  of  express  grant  in  one  case  more  than  in  the 
other.  In  a  case  of  dedication,  after  it  has  become  perfect  the 
abutting  lot  owners  are  presumed  to  act  with  respect  to  their  lots 
on  the  faith  of  it,  as  they  are  also  in  a  case  of  condemnation. 

The  question  is  stated  thus :  Suppose  one  buys  a  piece  of  land 
fronting  on  a  public  street,  or  suppose  he  improves  it,  say  by  erect- 
ing buildings  with  reference  to  use  in  connection  with  the  street, 
M' ould  it  not  be  a  fraud  on  him  to  afterwards  close  the  street  ? 
JSfot  only  do  the  abutting  lot  owners  pay  for  all  the  advantages 
which  the  street  may  furnish  to  their  lots  in  the  enhanced  price  of 
the  lots,  but,  in  cases  of  condemnation,  their  lots  are  liable  to  be, 
and  are  usually,  specially  taxed  to  pay  the  whole  cost  of  the  land 
taken;    and,  whether  the  street   be  established  by  dedication  or 


84:  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

condemnatioHj  the  abutting  lots  are  liable  to  be,  and  are  usually, 
specially  taxed  for  the  whole  cost  of  putting  and  keeping  it  in 
proper  condition  for  public  use.  It  would,  it  is  thought,  be  hard 
to  justify  the  imposition  of  these  taxes  on  them  instead  of  on  the 
public  at  large,  if  their  owners  have  no  other  interest  in  or  ad- 
vantage from  the  street  beyond  the  public  at  large,  or  if  such 
interest  or  advantage  is  of  so  precarious  a  tenure  that  they  may  at 
any  time  be  deprived  of  it. 

It  is,  however,  hardly  necessary  to  inquire  how  the  lot  owner 
gets  his  private  right  in  the  street ;  for  it  is  established  law  that 
he  has  a  private  right,  which  extends  to  the  necessity  of  access.' 
Access  to  the  lot  is  only  one  of  the  direct  advantages  which  the 
street  affords  to  it.  In  a  city  densely  peopled  and  built  up,  the 
admission  of  light  and  air  into  buildings  is  about  as  important  to 
their  proper  use  and  enjoyment  as  access  to  them.  Light  and  air 
are  largely  got  from  the  open  space  which  the  streets  afford. 

What  reason,  it  is  asked,  can  be  given  for  excluding  a  right  to 
the  street  for  admitting  light  and  air,  when  the  right  to  it  for  ac- 
cess is  conceded  ?  For  mere  purposes  of  access  to  the  lots,  a  strip 
ten  or  fifteen  feet  wide  might  be  sufficient.  Tet  everybody 
knows  that  a  lot  fronting  on  a  street  sixty  or  seventy  feet  wide 
is  more  valuable,  because  of  the  uses  that  can  be  made  of  it,  than 
though  it  front  on  such  a  narrow  strip.  Take  a  case  in  one  of 
the  States  where  the  fee  of  the  streets  is  in  the  State  or  munici- 
pality, and  of  a  street  sixty  feet  wide.  The  abutting  lot  owners 
have  paid  for  the  advantages  of  the  street  on  the  basis  of  that 
width,  either  in  the  enhanced  price  paid  for  their  lots,  or,  if  the 
street  was  established  by  condemnation,  in  the  taxes  they  have 
paid  for  the  land  taken.  In  such  a  case,  if  the  State  or  munici- 
pality should  attempt  to  cut  the  street  down  to  a  width  of  ten  or 
fifteen  feet,  would  it  be  an  answer  to  objections  by  lot  owners 
that  the  diminished  width  would  be  sufficient  for  mere  purposes 
of  access  to  their  lots  ?     The  question  suggests  the  answer. 

The  cases  known  as  the  Elevated  Railway  Cases'^  are  notable  as 
the  first  cases  in  which  was  squarely  presented,  so  as  to  demand  a 
direct  decision,  the  claim  of  abutting  lots  to  an  easement  in  the 

^Fassion  v.  Landrey  (Ind.  April  5,  1890)  24  N.  E.  Rep.  96. 
^Story  V.  N.    Y.  Elevated  R.  Co.  90  N.  Y.  122;  LaJi,?-  v.  Metropolitan  Elevated 
B.  Co.  104  N.  Y.  268,  6  Cent.  Rep.  371. 


Chap.  YI.]  EASEMENT    OF    LOT    OWNER    IN    STKEET.  85 

street  in  their  front,  for  pnrposes  of  light  and  air,  and  are  valnahle 
also  for  the  exhaustive  character  of  both  the  prevailing  and  dis- 
senting opinions  by  the  members  of  the  court.  The  latter  cases 
are  really  a  reargument  of  the  questions  decided  in  the  earlier ; 
and  in  its  opinion  the  court  not  only  adhered  to,  but  took  pains  to 
define,  its  earlier  decision,  and  in  some  respects  to  go  beyond  it, 
and  give  to  the  principles  determined  a  wider  application  than 
appears  to  have  been  given  to  them  in  the  first  case.  In  those 
cases  the  doctrine  is  unqualifiedly  established  that  no  matter  how 
the  abutting  owner  acquires  title  to  his  land,  and  no  matter  how 
the  street  was  established,  so  that  the  only  right  of  the  public  is 
to  hold  it  for  public  use  as  a  street  forever  (and  the  public  can 
acquire  no  greater  right  under  a  dedication),  and  no  matter  who 
may  own  the  fee,  "an  abutting  owner  necessarily  enjoys  certain 
advantages  from  the  existence  of  an  open  street  adjoining  his 
property  which  belong  to  him  by  reason  of  its  location,  and  are 
not  enjoyed  by  the  general  public ,  such  as  the  right  of  free  access 
to  his  premises,  and  the  free  admission  and  circulation  of  light 
and  air  to  and  through  his  property."  The  doctrine  was  followed 
and  applied  by  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York  in  New  York  Nat.  Bank  v.  New 
York  Elevated  R.  Co.,  24  Fed.  Eep.  114.  The  general  doctrine 
stands  on  sound  reason  and  considerations  of  practical  justice. 

TJie  private  right  in  a  street  is  of  course  subordinate  to  the  pub- 
lic right.  The  latter  right  is  for  use  as  a  public  street,  and  the 
incidental  right  to  put  and  keep  it  in  condition  for  such  use.  and 
for  no  other  purpose.  Whatever  limitation  or  abridgment  of  the 
advantages  which  the  abutting  lot  is  entitled  to  from  the  street 
may  be  caused  by  the  exercise  of  the  public  right,  the  owner  of 
the  lot  must  submit  to.  If  putting  it  to  proper  street  uses  causes 
annoying  noises  to  be  made  in  front  of  his  lot,  or  the  air  to  be 
filled  with  dust  and  smoke,  so  as  to  darken  his  premises,  or  pol- 
lute the  air  that  passes  from  the  street  upon  them,  he  has  no  legal 
cause  of  complaint.  His  right  to  complain  arises  when  such  in- 
terruptions to  the  enjoyment  of  his  private  right  are  caused  by  a 
perversion  of  the  street  to  uses  for  which  it  was  not  intended ;  by 
employing  it  for  uses  which  the  public  right  does  not  justify.  The 
court  in  Adams  v.  Chicago,  B.  &  N.  R.  Co.,  swpra,  reach  the  con- 


86  IMPOSED    DUTIES,  PERSONAL.  [Part  I. 

elusion  that  constructing  and  operating  an  ordinary  commercial  rail- 
road on  a  street  is  a  perversion  of  the  street  to  a  use  for  which  it  was 
not  intended  ;  one  not  justified  by  the  public  right,  and  which 
the  State  or  municipality,  as  representing  such  right,  cannot,  as 
against  private  rights,  authorize, — the  decisions  to  this  effect,  it  is 
said,  are  full  and  explicit.  It  has  always  been  held  in  Minnesota, 
contrary  to  the  decisions  in  many  of  the  States,  that  laying  such  a 
railroad  upon  a  public  street  or  highway  is  the  imposition  of  an 
additional  servitude  upon  it — an  appropriation  of  it  to  a  use  for 
which  it  was  not  intended.' 

Many  of  the  decisions  that  the  lot  owner  can  have  no  right  of 
action  where  railroads  are  permitted  to  use  the  street  for  commer- 
cial purposes  are  by  courts  which  hold  that  the  use  of  a  street  for 
an  ordinary  railroad  is  a  legitimate  street  use — one  that  comes 
within  the  uses  and  purposes  for  which  streets  are  established. 
Where  that  is  the  rule,  inasmuch  as  the  right  or  interest  of  the 
abutting  lot  owner  is  subordinate  and  subject  to  the  right  to  de- 
vote the  street  to  use  for  a  railroad,  as  well  as  for  any  other  proper 
mode  of  street  travel,  of  course  no  cause  of  action  in  favor  of  the 
lot  owner,  whether  he  owns  the  fee  of  the  street  or  not,  could 
grow  out  of  the  proper  construction  and  operation  of  a  railroad  in 
a  street.  For  that  reason  the  decisions  of  such  courts  can  be  of 
no  authority  where  a  different  rule  upon  the  rightfulness  of  using 
the  street  for  such  a  purpose  prevails. 

The  conclusions  arrived  at  in  Adams  v.  Chicago,  B.  <&  JV.  R. 
Co.,  supra,  are  that  the  owner  of  a  lot  abutting  on  a  public  street 
has,  independent  of  the  fee  in  the  street,  as  appurtenant  to  his  lot, 
an  easement  in  the  street  in  front  of  his  lot  to  the  full  width  of 
the  street,  for  admission  of  light  and  air  to  his  lot,  which  ease- 
ment is  subordinate  only  to  the  public  right ;  that  depriving  him 
of  or  interfering  with  his  enjoyment  of  the  easement  for  any  pub- 
lic use  not  a  proper  street  use  is  a  taking  of  his  property  within 
the  meaning  of  the  Constitution ;  that  appropriating  a  public 
street  to  the  construction  and  operation  of  an  ordinary  commercial 
railroad  upon  it  is  not  a  proper  street  use ;  that  where,  without 
his  consent  and  without  comjiensation  to  him,  such  a  railroad  is 
laid  and  operated  along  the  portion  of  the  street  in  front  of  his 
^Carliv,  Stillwater  Street  B.  &  Trans.  Co.  28  Minn.  373,  and  cases  cited. 


Cliap.  YI.]  8TKEET   RAILROAD. — GRANT   OF    PRIVILEGE.  87 

lot,  SO  as  upon  that  part  of  the  street  to  cause  smoke,  dust,  cinders, 
etc.,  which  darken  or  polkite  the  air  coming  from  that  part  of  the 
street  upon  his  lot,  he  may  recover  whatever  damages  to  his  lot 
are  caused  by  so  laying  and  operating  such  railroad  on  that  part  of 
the  street ;  that  the  recovery  should  be  limited  to  the  damages 
caused  by  operating  the  railroad  in  front  of  plaintilf's  lot,  and 
ought  not  to  include  any  that  might  have  accrued  from  ojDcruting 
it  on  other  parts  of  the  street. 

b.  Street  Railroad.— Grant  of  Privilege. 

"Where  a  private  person  or  corporation,  under  an  unlawful  au- 
thority conferred  by  municipal  officers,  constructs  railroad  tracks 
across  a  street,  thereby  diverting  travel  and  decreasing  the  value 
of  the  property  of  a  lot  owner  and  taking  away  trade,- such  owner 
suffers  such  an  injury  as  entitles  him  to  maintain  an  injunction  to 
restrain  the  construction  and  oj)eration  of  the  tracks  as  a  public 
nuisance.*  The  right  to  construct  and  operate  a  street  railway  is  a 
franchise  which  must  have  its  source  in  the  sovereign  power.  The 
legislative  power  over  the  subject  is  also  subject  to  the  limita- 
tion that  the  franchise  must  be  granted  for  public  and  not  private 
purposes  ;  or  at  least  public  considerations  must  enter  into  every 
valid  grant  of  a  right  to  appropriate  a  public  street  for  railway 
uses.*  The  corporate  entity  and  its  corporate  franchises  are  dif- 
ferent things  ;  the  one  is  the  being,  the  others  are  attributes  and 
possessions  of  the  body.^  Where  an  ordinance  of  a  city  authorizes 
a  railway  company  to  construct  and  operate  a  line  of  road  within 
the  limits  of  the  city,  and  prescribes  the  conditions  imposed  upon 
the  company,  and  no  right  to  alter  the  terms  uj)on  which  the  com- 
pany accepted  was  reserved,  the  city  has  no  power,  by  a  subse- 
quent ordinance,  without  the  consent  of  the  company,  to  impose 
upon  it  other  and  additional  obligations.*  A  municipality  havino- 
control  over  its  streets  may  prescribe  the  motive  power  to  be  used 
in  propelling  street  cars  thereon,  and  when  it  prescribes  one  kind 

^Glcessner  v.  Aniieuser-Busch  Brew.  Asso.  100  Mo.  508. 
*  Fanning  v.  Osborne,  102  N.  Y.  441,  3  Cent.  Kep.  455. 
^State  V.  Boston,  0.  &  M.  R.  Go.  25  Vt.  433;  1  Kyd,  Corp.  15. 
^People  V.  Chicago  West  Division  R.  Co.  118  111.  113,  5  West.  Rep.  517. 


88  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

jf  power  no  other  can  be  used.'  All  grants  of  privileges  by  the 
State  are  subject  to  its  right  to  prescribe  the  conditions  upon 
■which  they  shall  be  enjoyed.*  Excessive  privileges  cannot  pass  by 
grant  of  a  franchise  except  by  express  words.*  Such  grants  should 
be  strictly  construed.*  Any  ambiguity  in  grants,  or  excessive 
privileges,  must  operate  against  the  grantee.^  And  if  doubts  arise 
in  construing  the  language  of  a  charter,  they  will  always  be  re- 
solved in  favor  of  the  State  and  the  public*  To  ascertain  the 
meaning  of  a  grant,  resort  may  be  had  to  the  practical  interpreta- 
tion given  by  the  subsequent  uniform  acts  and  conduct  of  the 
parties  in  relation  thereto.''  Whatever  may  have  been  the  rule  at 
common  law,  under  the  State  Constitutions  and  Statutes  the  pow- 
ers of  corporations  are  expressly  limited  to  those  specified  in  the 
statute  or  conferred  by  their  charters.*  Where  authority  given 
for  the  use. of  streets  is  specific,  precise  and  guardedly  limited, 
and  the  streets  and  extent  of  use  are  specifically  defined,  and  im- 
mediately after  a  general  clause  is  inserted,  such  general  clause 
gives  no  additional  authority.'  A  permission  to  occupy  public 
streets  with  a  railroad  track  should  plainly  appear,  and  not  be  left 
to  be  derived  by  doubtful  implication  from  the  generality  of  lan- 
guage." The  same  power  of  the  Legislature  that  exists  over  the 
streets  extends  also  as  to  allowing  a  right  of  way  under  the  streets.'^ 
Therefore,  power  to  tunnel  under  the  streets  of  a  city  may  be 
granted  by  legislative  authority,  and,  as  a  sequence,  the  grant  may 
not  only  be  by  express  words,  but  may  arise  by  implication  as  in 

^Indianapolis  Cable  St.  R.  Co.  v.   Citizens  St.  B.   Co.  (Ind.  June  19,  1890) 

8  L.  R.  A.  539,  and  note. 

^Delaware,  L.  &  W.  R.  Co.  v.  Central  Stock  Yard  &  T.  Co.  43  N.  J.  Eq.  71^ 

9  Cent.  Rep.  Ill;  Oshkosh  v.  Mihcaukee  &  L.  W.  R.  Co.  74  Wis.  534. 
^Citizens  St.  B.  Co.  v.  Jones,  34  Fed.  Rep.  579. 

*Omaha  Horse  R.  Co.  v.  Cable  Tramicay  Co.  30  Fed.  Rep.  324. 

'^New  York  v.  Starin,  106  N.  Y.  1;  Qilmore  v.  JJtica,  55  Hun,  514. 

*  Victoria  Co.  v.  Victoria  Bridge  Co.  68  Tex.  62;  Langdon  v.  NeiD  York,  93  N. 

Y.  129;  New  York  v.  Broadway  &  S.  A.  R.  Co.  97  N.  Y.  275. 
''Neio   York  v.  Starin,  106  N.  Y.  1,  8   Cent.  Rep.  54;  Beople  v.  Mauran,  5 

Denio,  389;  Goodyear  v.  Cary,  4  Blatchf.  271;  Smith  v.  Beople,  47  N.  Y. 

339;  Eaf<ton  v.  Bickersgill,  55  N.  Y.  315;  Enapp  v.  Warner,  57  N.  Y.  668; 

Boicer  v.  Athens,  99  N.  Y.  601,  1  Cent.  Rep.  181;  New  York  v.  Hart,  95 

K  Y.  451. 
^Re  McQraw  v.  Cornell  University,  45  Hun,  354. 
» ^''Chicago,  D.  &  V.  B.  Co.  v.  Chicago,  121  111.  176,  9  West.  Rep.  493. 
^^BaUimore  &  B.  R.  Co.  v.  Reaney,  42  Md.  117;  1  Rorer,  Railroads,  501. 


Chap.  YI.]  STREET    RAILROAD. — GRANT    OF    PillVILEGE.  89* 

other  cases.'  Where  such  right  is  claimed  by  virtue,  also,  of  a 
concurrent  ordinance  of  the  city,  the  company  is  bound  on  its  part 
by,  and  must  conform  to,  the  terms  of  the  ordinance.'  Coi'pora- 
tions  are  confined  to  the  exercise  of  powers  granted,  and  such  in- 
cidental powers  as  are  necessary  to  carry  into  effect  those  specially 
conferred.'  A  corporation  has  power  to  do  only  such  acts  as  its 
charter,  considered  in  relation  to  the  general  law,  authorizes  it  to 
do.*  AVhatever  rights,  beyond  those  belonging  to  a  natural  per- 
son, are  claimed  by  a  corporation  must  either  be  found  in  its 
charter  or  must  arise  from  contract.'  The  construction  of  the 
road  must  be  done  in  conformity  with  the  plans  and  estimates 
submitted  to  the  jury  who  assessed  the  right  of  way ;  and  if  de- 
parted from  to  the  damage  of  the  land  holder,  injunction  may  be 
allowed  to  restrain  it  or  the  remedy  by  action  for  damages  may  be 
resorted  to.  The  assessment  of  right  of  way  will  not  cover  such 
outside  injury.'  If,  in  making  such  construction,  there  be  injury 
inflicted  on  others,  by  reason  of  unskillf  ulness  or  negligence,  the 
company  is  liable.''  The  taking  of  private  property  for  public  usa 
is  in  derogation  of  private  right — is  hostile  to  the  ordinary  control 
of  the  citizen  over  his  estate;  and  therefore  statutes  authorizing  it 
are  not  to  be  extended  in  their  operation  by  mere  implication.* 

^Baltimore  &  P.  R.  Co.  v.  Reaney,  42  Md.  117,  131;  Springfield  v.  Con- 
necticut R.  R.  Co.  4  Cush.  63;  Enfield  Toll  Bridge  Co.  v.  Hartford  &  N. 
II.  R.  Co.  17  Conn.  40,  54;  New  York,  H.  &  N.  R.  Co.  v.  Boston,  II. 
&E.  R.  Co.  36  Conn.  196;  Bridgeport  v.  Neio  York  &  N.  H.  R.  Co.  36 
Conn.  255;  White  River  Tump.  Co.  v.  Vermont  C.  R.  Co.  21  Vt.  590; 
Central  City  Horse  R.  Co.  v.  Ft.  Clark  Horse  R.  Co.  81  111.  523;  Contra. 
Costa  C.  M.  R.  Co.  v.  Moss,  23  Cal.  323;  Rex  v.  Pease,  4  Barn.  &  Ad.  30. 

^Baltimore  &  P.  R.  Co.  v.  Reaney,  42  Md.  117;  Baltimore  &  C.  V.  R.  E.  Co. 
V.  Duke,  129  Pa.  422. 

^Chicago  Gaslight  <&  Coke  Co.  v.  People's  Gaslight  &  Coke  Co.  121  111.  530,  11 
West.  Rep.  69. 

*Oulf,  C.  &  S.  F.  R.  Co.  V.  Moj-ris,  67  Tex.  692;  Ft.  Worth  Street  R.  Co.  v. 
Rosedale  Street  R.  Co.  68  Tex.  169. 

^Shelbyville  R.  Co.  v.  Louisville,  G.  <&  L.  R.  Go.  83  Ky.  541. 

^Jacksonville  &  S.  R.  Go.  v.  Kidder,  21  111.  131;  St.  Louis,  J.  &  C.  R.  Co.  v. 
Mitchell,  47  111.  165;  Peoria  &  R.  I.  R.  Co.  v.  Bii-kett,  62  111.  332. 

''Baltimore  &  P.  R.  Co.  v.  Reaney,  42  Md.  117,  130;  Leader  v.  Moxon,  3  Wil- 
son, 461;  Jones  v.  Bird,  5  Barn.  &  Aid.  837;  Lawrence  v.  Great  Northern- 
R.  Co.  16  Q.  B.  643;  Manley  v.  St.  Helen's  Canal  &  R.  Co.  2  Hurl.  &N. 
840;  1  Rorer,  Railroads,  501. 

•Rensselaer  &  8.  R.  Co.  v.  Davis,  43  N.  Y.  137,  146;  New  York  &  H.  R.  Co. 
V,  Kip,  46  N.  Y.  546;  Re  Deansville  Cemetery  Asso.  66  IST.  Y.  509,  5  Hun, 
482;  Wilson  v.  Lynn,  119  Mass.  174;  Brayton  v.  Fall  River,  124  Mass.  95; 


90  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

c  Steam  Street  Railroad— Excluded. 

Tlie  clear  weight  of  authority  still  seems  inclined  to  regard  the 
employment  of  steam  as  a  motive  power  upon  the  streets  of  a  city 
as  an  appropriation  of  the  street  to  a  new  servitude.  In  New 
York  and  some  other  States  the  construction  of  a  steam  railroad 
between  distant  points  in  a  highway  is  treated  as  devoting  it 
to  a  new  and  distinct  use,  for  which  the  adjoining  owner  is  en- 
titled to  compensation,  as  for  an  additional  servitude,  even  with- 
out proof  of  special  damage.' 

In  Williams  v.  New  York  C.  R.  Co.,  16  N.  T.  97,  the  principle 
was  established  that  a  dedication  of  land  for  street  purposes  did 
not  authorize  the  Legislature  to  permit  the  construction  of  a  steam 
railroad  thereon  without  compensation  to  the  owner  of  the  fee,* 
and  he  is  entitled  to  damages  for  a  depreciation  of  the  market  or 
rental  value  of  his  premises,  and  for  annoyances  to  his  business  or 
to  his  family  occupation.'  A  railroad  company  chartered  to  run 
its  train  through  a  street  cannot  make  the  dwelling-houses  unin- 
habitable by  the  operation  of  its  road,  without  offering  compensa- 
tion;* nor  will  the  license  of  the  board  of  supervisors  justify  the 
<5reation  of  a  nuisance.'     One  man  cannot  with  impunity  invade 

Holt  V.  Somermlle,  127  Mass.  408;  Central  R.  Co.  v.  Pennsylvania  R.  Co.  31 
N.  J.  Eq.  475;  Nat.  Docks  R.  Co.  v.  Central  R.  Co.  32  N.  J.  Eq.  755; 
Missimppi  Boom  Co.  v.  Patterson,  98  U.  S.  403,  25  L.  ed.  206;  Prather  v. 
Jeffersonville,  M.  &  I.  R.  Co.  52  Ind.  36.  But  see  Leisse  v.  St.  Louis  & 
I.  M.  R.  Co.  2  Mo.  App.  105;  1  Rorer,  Railroads,  298. 

Fletcher  v.  Auburn  &  S.  R.  Co.  25  Wend.  462;  Adams  v.  Chicago,  B.  &  N. 
R.  Co.  39  Minn.  286,  1  L.  R.  A.  493;  Imlay  v.  Union  Branch  R.  Co.  26 
Conn.  249,  68  Am.  Dec.  392;  Williams  v.  New  York  C.  R.  Co.  16  N.  Y. 
97,  18  Barb.  222;  Ruttles  v.  Covington  (Ky.  Jan.  31,  1889)  10  Ky.  L.  Rep. 
766;  Henderson  v.  New  York  C.  R.  Co.  78  N.  Y.  423, 17  Hun,  344;  Southern 
Pac.  R.  Co.  V.  Reed,  41  Cal.  256;  Washington  Cemetery  v.  Prospect  Park 
&  C.  I.  R.Co.  68  N.  Y.  591;  Tlieobold  v.  Louisville,  N.  0.  &  T.  R.  Co.  66 
Miss.  279,  4  L.  R.  A.  735;  Murdockv.  Prospect  Park  &  C.  L  R.Co.  73  N.Y. 
579;  Cray  v.  St.  Paul  &  P.  R.  Co.  13  Minn.  315;  i?e  New  York  C.  &  H.  R. 
R.  Co.  15  Hun,  63;  Starr  v.  Camden  &  A.  R.  Co.  24  N.  J.  L.  592;  Re  Pros- 
pect Park  &  C.  I.  R.  Co.  16  Hun,  261;  Terre  Haute  &  I.  R.  Co.  v.  Scott, 
74  Ind.  29;  Lafayette,  M.  &  B.  R.  Co.  v.  Murdock,  68  Ind.  137;  Ford  v. 
Chicago  &  N.  R.  Co.  14  Wis.  616;  Cape  Girardeau  &  B.  M.  &  O.  Road 
Co.  V.  Renfroe,  58  Mo.  265 ;  Indianapolis,  B.  &  W.  R.  Co.  v.  Hartley,  67 
111.  439,  16  Am.  Rep.  624;  South  Carolina  R.  Co.  v.  Steiner,  44  Ga."546; 
Jones  V.  Keith,  37  Tex.  394. 

^Fanning  v.  Osborne,  102  N.  Y.  441,  3  Cent.  Rep.  455. 

^Floi'ida  Southern  R.  Co.  v.  Brown,  23  Fla.  104. 

*Pennsylvania  R.  Co.  v.  Angel,   41  N.  J.  Eq.  316,  5  Cent.  Rep.  86. 

^Sullivan  v.  Royer,  72  Cal.  248;  Baltimore  d  C.  V.  R.  E.  Co.  v.  Duke,  129 
Pa.  422. 


Chap.  YI.]  STEAM    STREET    KAILROAD EXCLUDED.  91 

the  premises  of  another  by  a  nuisance,  because  the  damages  may 
be  inappreciable.  The  law  allows  the  recovery  of  nominal  dam- 
ages, at  least,  as  evidence  of  plaintiff's  right.'  The  presumption 
in  regard  to  a  street,  in  the  absence  of  evidence,  is  that  the  puljlic 
has  acquired  an  easement  only  for  highway  uses  in  the  land  em- 
braced in  the  street.'  The  property  or  easement  which  a  city  has 
in  the  streets  or  public  places  is  not  private  property,  in  the  sense 
that  it  cannot  be  taken  for  a  public  use,  except  upon  just  compen- 
sation ;  but  it  is  public'  The  easement  acquired  by  the  public  is 
limited  to  the  right  to  travel  over  the  same.*  The  right  which  a 
municipality  acquires  in  a  street  is  limited  by  public  necessity,  and 
cannot  extend  beyond  its  use  for  street  purposes."  When  this 
paramount  power  of  condemnation  has  been  exercised,  the  use  of 
the  property  or  easement  taken  can  only  be  exercised  in  accord- 
ance with  and  for  the  purposes  for  which  it  has  been  taken.*  One 
whose  property  abuts  on  a  highway  is  entitled  to  enjoy  the  bene- 
fits of  it,  whether  any  land  was  originally  taken  from  him  or  not.^ 
All  uses  inconsistent  with  the  public  necessity  remain  in  the  abut- 
ting owner.*  The  presumption,  in  the  absence  of  evidence,  is 
that  the  fee  of  land  embraced  in  a  street  remains  in  the  oriofinal 
owner,'  and  that  the  public  has  acquired  an  easement  only  for 
highway  uses.  An  abutter  owning  the  fee  of  half  the  street  has 
such  property  therein  as  will  prevent  the  taking  of  any  part  of  it 
by  the  laying  of  a  railroad  track  thereon,  and  the  operation  of  a 
steam  railroad,  without  compensation."  The  right  to  compensa- 
tion given  in  Iowa  by  Code,  §  46-i,  to  abutters  on  a  street  occupied 
by  a  railroad  company,  is  not  an  interest  in  the  street,  but  simply 
a  claim  to  damages,  which  may  be  waived  or  assigned  in  parol." 

^Humphrey  v.  Irvin  (Pa.  Oct.  4,  1886)  4  Cent.  Rep.  687. 

^Fanning  v.  Osborne,  102  N.  Y.  441,  3  Cent.  Rep.  453;  Robert  v.  Sadley,  104 

N.  Y.  229,  6  Cent.  Rep.  208. 
^Portland  &  W.  V.  R.  Go.  v.  Portland,  14  Or.  188. 
4  Winchester  v.  Capron,  63  N.  H.  605,  2  New  Eng.  Rep.  543. 
^Lahr  v.  Metropolitan  Elevated  R.  Co.  104  N.  Y,  268,  6  Cent.  Rep.  375. 
^Lance's  App.  55  Pa.  25. 
"iLahr  v.  Metropolitan  Elevated  R.  Co.  104  N.  Y.  268,  6  Cent.  Rep.  375;   Up- 

Tiam  V.  Worcester,  113  Mass.  97. 
^Lahr  V.  Metropolitan  Elevated  R.  Co.  104  N.  Y.  268,  6  Cent.  Rep.  375, 
^Fanning  v.  Osborne,  102  N.  Y.  441,  3  Cent.  Rep.  453. 
^^Florida  Southern  R.  Co.  v.  Brown,  23  Fla.  104. 
"iVa«  V.  Des  Moines  N.  W.  R.  Co.  72  Iowa,  249;  Jolly  v,  Bes  Moines  K  W. 

R.  Co.  Id,  759, 


92  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

d.  Steam  Street  Railroad— Permitted. 

But  there  are  courts  that  do  not  limit  the  original  appropria- 
tion, and  exclude  the  use  of  steam  as  a  motor.  It  is  held  in 
some  of  the  States  that  the  occupation  by  a  railroad,  under  leg- 
islative authority,  of  the  street  of  a  city  in  its  ordinary  use  as- 
a  means  of  travel  and  transportation,  is  not  an  abandonment 
or  perversion  of  the  street  from  its  original  purposes.  Time,  the 
unerring  test  in  the  utilization  of  new  discoveries,  has  demonstrated 
that  long  and  connecting  lines  of  railroad  greatly  facilitate  and 
cheapen  transportation.  To  construct  and  operate  such  lines  it  i& 
necessary  that  cities  shall  be  traversed  by  them.  The  city  is  nec- 
essarily traversed  by  and  through  its  streets ;  and  by  laying  a 
railroad  track  through  or  along  a  public  street,  the  use  and  com- 
fort of  the  latter  as  a  highway  must  be  somewhat  impaired.  When 
this  is  done  under  proper  authority,  it  is  but  the  assertion  of  so 
much  of  the  sovereign  power  and  discretion,  by  which  one  right  or 
easement  is  abridged  in  its  enjoyment  that  the  public  may  have 
another  deemed  to  be  of  greater  value.' 

Under  the  law  in  West  Virginia,  a  railroad  company,  with  the 
assent  of  the  municipal  authorities,  may  construct  and  operate  its 
railroad  along  a  public  street  of  a  city  in  a  cut  or  excavation  below 
the  common  level  of  the  remaining  portion  of  the  street,  in  such 
manner  as  will  appropriate  a  portion  of  the  street  to  the  exclusive 
use  of  the  railroad  company,  provided  such  excavation  does  not 
occupy  the  entire  street  or  such  considerable  portion  thereof  as 
would  substantially  prevent  the  use  of  the  street  by  the  general 
public,  and  the  abutting  lot  owners  on  the  street  so  occupied  by 
the  railroad  company,  whether  they  own  the  fee  in  the  ground 
covered  by  the  street  or  not,  will  not  be  entitled  to  enjoin  the 
railroad  company  from  making  such  excavation  and  constructing 
its  road  along  the  street  in  a  careful  and  proper  manner,  unless  in 
doing  so  the  injury  to  the  lot  owners  will  be  such  as  will  entirely 
destroy  the  value  of  their  property  and  therefore  be  equivalent  to 
a  virtual  taking  of  it  by  the  railroad  company.' 

^Perry  v.  New  Orleans,  M.  &  G.  B.  Co.  55  Ala.  413,  424;  Porter  v.  North  Mo. 

B.  Co.  33  Mo.  128;  Baltimore  &  G.  V.  B.  E.  Co.  v.  Duke,  129  Pa.  422. 
^Arbem  v.  Wheeling  <&  H.  B.  Co.  33  W.  Va.  1,  5  L.  R.  A.  371.     See  also  Be 

Philadelphia  &  T.  B.  Co.  6  Whart.  25;  Slruthers  v.  Dunkirk,  W.  &  P.  B. 

Co.  87  Pa.  286;  Morris  &  E.  B.  Co.  v,  Newark,  10  N.  J.  Eq.  352;  Ped- 

dicord  v.  Baltimore,  C.  &  E.  M.  P.  B.  Co.  34  Md.  463. 


Ohap.   VI.]       FEE    OF    STREET    IN    THE    PUBLIC. RELEASE.  93 

e-  Fee  of  Street  in  the  PllTjUc— Release. 

It  has  been  denied  by  some  of  the  courts  that  the  owner  of  prop- 
■ertj  in  a  city  where  the  fee  of  the  streets  is  in  the  public  can 
assert  a  claim  for  dama<^es  for  the  excavation  of  an  adjacent  street 
by  a  railroad  in  making  a  crossing  for  its  track,  under  a  hceuse 
properly  granted  by  the  city,  and  when  the  work  is  done  in  a  care- 
ful and  skillful  manner.' 

A  distinction  has  been  taken,  however,  between  horse  and  steam 
railways,"  and  it  is  said  that  a  change  in  the  public  use  from  one 
kind  of  public  use  to  another,  which  is  not  a  material  change,  will 
not  operate  as  an  abandonment  of  the  prior  use  or  as  an  addition- 
al servitude,^  and  that  one  owning  the  fee  cannot  recover  for  an 
added  burden  where  the  cars  are  drawn  by  horses.*  But  this 
distinction  is  denied  in  New  York,  and  while  the  lot  owner  whose 
limit  is  the  street  line  cannot  recover  for  interference  with  any 
easement  in  the  street,  from  running,  with  any  motive  power,  cars 
thereon,  at  grade,^  not  denying  access  to  his  premises,"  the  owner 
of  the  fee  in  the  street  may  do  so.' 

So  it  is  said  that  if  the  owner  of  lots  fronting  on  a  street  in  a 
■city  does  not  own  the  street  in  front  of  his  lots,  subject  to  a  pub- 
lic easement,  he  cannot  maintain  an  action  for  damages  for  build- 
ing a  railroad  on  the  street,  except  for  special  damages  by  reason 

^Fram  v.  Sioux  City  &  P.  B.  Go.  55  Iowa,  107. 

^Atty-Qen.  v.  Metropolitan  B.  Co.  125  Mass.  515,  28  Am.  Rep.  264;  Orand 

Bapids&  I.  B.  Co.  v.  Heinel,  38  Mich.  62;  Stanley  v.  Davenport,  54  Iowa, 

463;  1  Rorer,  Railroads,  504. 
^Brainard  v.  Missisquoi  B.  Co.  48  Vt.  107;  Malonev.  Toledo,  28  Ohio  St.  643. 

But  see  People  v.  Lawrence,  54  Barb.  589;  Mills,  Em.  Dom.  §  57. 
*Bandall  v.  Jacksonville  St.  B.  Co.  19  Fla.  409, 17  Am.  &  Eag.  R.  R.  Cas.  184; 

Hiss  V.  Baltimore  &  H.  P.  B.  Go.  53  Md.  242;  Hinchman  v.  Patterson  H.  B. 

Co.  17  N.  J.  Eq.  75;  Hobart  v.  Milwaulcee  B.  Co.  27  Wis.  194;  Texas  &  P. 

B.  Co.  V.  Bosedak  St.  B.  Co.  64  Tex.  80,  22  Am.  &  Eng.  R.  R.  Cas.  160, 

Eichels  v.  Evansville  St.  B.  Co.  78  Ind.  261;  Bio  Grande  B.  Co.  v.  Brotcns- 

mlle,  45  Tex.  88;  Cincinnati  &  S.  G.  Ave.  St.  B.  Co.  v.  Cumminsville,  14 

Ohio  St.  523;  Severy  v.  Central  Pac.  B.    Co.  51  Gal.   194;  Elliott  v.  Fair 

Haven,  32  Conn.  579. 
^Drake  v.  Hudson  B.  B.  Go.  7  Barb.  508;  Bellinger  v.  Forty-Second  St.  &  O. 

St.  F.  B.  Co.  50  N.  Y.  206;   Washington  Cemetery  v.  Prospect  Park  &  G. 

I.  B.  Co.  68  N.  Y.  591,  593. 
'Mahady  v.  Bushwick  B.  Go.  91  N.  Y.  149.     See  also  Fulton  v.  Short  Boute 

B.  Trans.  Go.  85  Ky.  640. 
^Fobes  V.  Borne,  W.  &  0.  B.  Co.  121  N,  Y.  505,  8  L.  R.  A.  453;  Drucker  v. 

Manhattan  B.  Go.  106  N.  Y.  157,  8  Cent.  Rep.  66;  Craig  v.  Bochaster  City 

&  B.  B.  Go.  39  N.  Y.  404. 


94  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

of  a  nuisance  caused  by  the  obstruction  of  a  public  street ;'  and 
that  where  a  raih-oad  track  is  on  a  public  street,  owners  of  prop- 
erty in  its  vicinity,  to  sustain  a  complaint  for  constructing  and 
maintaining  it,  must  establish  that  it  is  a  public  nuisance,  and  that 
they  have  sustained  special  damage." 

The  possession  of  the  public  roads  by  a  railway  company  is  a 
matter  between  the  road  authorities  and  the  company  ;  and  the 
right  cannot  be  questioned  in  an  action  of  ejectment  by  the  owner 
of  the  land  over  which  the  public  road  has  been  established.*  And 
where  the  owner  of  a  lot  fronting  on  a  street  has  released  to  a 
railroad  company  the  right  of  way  for  the  use  of  one  track  in  the 
street  to  the  center  of  the  street,  he  cannot  maintain  an  injunction 
to  prohibit  the  company  from  constructing  a  switch  by  laying  a 
track  on  the  projecting  ends  of  the  ties  on  which  the  rails  of  the 
main  track  have  been  laid,  unless  it  appears  that  the  laying  of  the 
proposed  switch  will  in  some  way  impose  a  burden  on  the  plain- 
tiff's soil,  or  that  it  in  some  way  obstructs  or  impairs  the  plaintiff's 
use  of  the  street.* 

f.  Electric  Motors. 

But  the  use  of  modern  improved  means  of  travel  and  the  rapid 
conveyance  of  persons  and  the  swift  and  accurate  transmission  of 
intelligence  are  visibly  changing  the  current  of  public  sentiment, 
and  highways  appropriated  hereafter  will  certainly  be  considered 
as  charged  with  new  uses  in  the  public  interest.  The  use  of  horse 
cars  has  been  generally  regarded  by  the  courts  as  not  involving  a 
new  or  added  servitude  by  their  introduction  on  the  streets,  and 
as  furnishing  no  ground  in  themselves  for  compensation  to  pro- 
prietors of  abutting  property,  although  they  may  have  title  to  the 
street  subject  to  the  original  easement  of  the  public  therein.  Even 
now  courts  which  exclude  steam  engines,  as  practically  appropri- 
ating the  entire  roadway,  are  prepared  to  accept  steam  motors  in 

^Severy  v.  Central  Pac.  R.  Co.  51   Cal.   194;  Grand  Rapids  &  I.  R.   Co.  v. 

Heisel,  38  Mich.  62;  Greene  v.  Ifew  York  C.  &  H.  R.  R.  Co.  13  Abb.  N. 

C  124-  Houston  &  T.  C.  R.  Co.  v.  Odum,  53  Tex.  343,  2  Am.  &  Eng.  R. 

R.  Cas.  503;  Barney  v.  Keokuk,  94  U.  S.  324,  24  L.  ed.  224;  Bolts  v.  Mo. 

Pac.  R.  Co.  11  Mo.  App.  589;  Rio  Grande  R.  Co.  v.  Brownsville,  45  Tex. 

88;'  Elizahethtown  &  P.  R.  Co.  v.  Thompson,  79  Ky.  52. 
^Black  V.  Philadelphia  &  R.  R.  Co.  58  Pa.  249. 
^Edwardsmlle  R.  Co.  v.  Sawyer,  92  111.  377. 
*Indianapolis  &St.  L.  R.  Co.  v.   Calvert,  110  Ind.  555,  9  West.  Rep.  238. 


Chap.  YI.]      TELEGRAPH  AND  TELEPHONE  POLES.  95- 

noiseless  work.'  Electricity  is  accepted  in  public  opinion  as 
a  proper  motor  for  the  streets,  and  it  has  recently  been  determined 
that  a  charter  permitting  a  street  railway  to  use  horses  or  other 
power  will  permit  the  use  of  electricity  as  a  motive  power  ;'  and 
that,  where  authority  is  given  to  use  electricity  as  a  motive  power, 
by  any  system  of  application  approved  as  suitable,  the  placing  of 
poles  in  the  streets  will  not  be  held  prohibited  by  a  clause  in  the 
charter  prohibiting  the  incumbering  of  any  part  of  the  streets  not 
occupied  by  its  tracks.'  And  so  the  New  York  Statute  authorizing 
a  turnpike  company  to  operate  a  street  railroad,  and  to  use  "  the 
power  of  horses,  animals  or  any  mechanical  or  other  power,  or  the 
combination  of  them,  which  such  company  might  choose  to  em- 
ploy, except  the  force  of  steam,"  is  construed  as  embracing  elec- 
tricity as  a  motive  power,*  and  the  Kapid  Transit  Act  (Laws  1875^ 
chap.  606)  authorizes  the  organization  of  companies  to  construct 
street  railways  on  the  surface,  to  be  operated  by  any  power  other 
than  animal.' 

A  statute  conferring  on  a  street  railway  company  the  right  to 
adopt  a  new  motive  power  in  place  of  animal  power  does  not  vio- 
late a  constitutional  provision  that  no  law  shall  authorize  "  the 
construction  or  operation  of  a  street  railroad"  without  the  consent 
of  the  local  authorities  having  control  of  the  portion  of  the  high- 
way upon  which  it  is  proposed  to  operate  the  railway,  although  no- 
provision  is  made  for  obtaining  such  consent.* 

g.  Telegraph  and  Telephone  Poles. 

The  injury  to  the  private  individual  who  asks  an  injunction 
must  not  be  trivial,  or  such  as  may  be  compensated  in  damao-es 
but  must  be  serious,  affecting  the  substance  and  value  of  the- 
plaintiff's  estate.''      He  must  show  some  special  injury  over  and 
above  the  common  injury  to  the  general  public* 

^Newell  V,  Minneapolis,  L.  <&  M.  R.  Go.  35  Minn.  113,  59  Am.  Rep.  303. 

« ^Taggart  v.  Newport  St.  R.  Co.  16  R.  I. ,  7  L.  R.  A.  205. 

^Hudson  River  Teleph.  (Jo.  v.  Waternliet  Tump.  <&  R.  Co.  56  Hun,  67. 
^JSTeio  York  Cable  R.  Co.  v.  New  York,  104  N.  Y.  1,  6  Cent.  Rep.  56. 
*Re  Petition  TJiird  Ave.  R.  Co.  (N.  Y.  June  17, 1890)  9  L.  R.  A.  12-1. 
■'Talbott  V.  King,  32  W.  Va.  6. 
^Olcessner  v.  Anheuser-Busch  Brew.  Asso.  100  Mo.  508. 


"96  IMPOSED   DUTIES,    PEKSONAL.  [Part   I. 

One  having  the  right  of  possession  of  property  may  sue  for  nuis- 
ance resulting  from  unlawful  use  of  a  public  street  upon  which  it 
abuts/  as  for  the  unlawful  occupation  of  the  street  bj  a  railroad, 
or  maintaining  telephone  poles  and  wires  by  a  telegraph  com- 
pany." 

In  Reg.  v.  United  Kingdom  Teleg.  Co.,  3  Fost.  &  F.  T32,  it  is 
decided  that  a  permanent  obstruction,  such  as  the  posts  of  a 
telegraph,  erected  on  a  highway  and  placed  there  without  lawful 
authority,  whereby  the  way  is  rendered  less  commodious  to  the 
public  than  before,  is  an  unlawful  act  and  amounts  to  a  nuisance ; 
and  the  circumstance  that  the  posts  were  not  placed  upon  the  re- 
paired and  metalled  part  of  the  highway,  nor  upon  an  artificially 
formed  foot  path,  but  on  the  waste  on  each  side  of  the  way,  makes 
no  difference,  even  though  a  jury  might  be  of  opinion  that  a  suf- 
ficient space  for  the  public  use  remained  unobstructed. 

There  is  a  decided  disagreement  among  the  courts  upon  the 
question  whether  the  erection  and  maintaining  by  a  corporation 
of  telephone  poles  and  wires  in  a  city  street,  the  fee  of  which  is 
in  the  adjacent  proprietor,  is  an  infringement  of  the  property 
rights  of  the  owner  of  the  land,  the  proper  authorities  having 
consented  to  such  a  use  of  the  street.  Is  such  a  case  within  the 
purpose  for  which  city  streets  must  be  deemed  to  have  been 
established,  so  that  the  individual  proprietor  is  not  entitled  to 
further  compensation  ?  Or  is  this  a  new  appropriation  of  the  land 
not  embraced  in  the  original  dedication  or  condemnation  for  the 
purposes  of  a  public  street  ?  That  a  municipal  corporation  has 
the  general  power  to  regulate  the  use  of  streets,  and  that  this 
power  extends  to  new  uses  as  they  spring  into  existence  from  time 
to  time,  as  well  as  to  uses  common  and  known  at  the  time  of  the 
dedication  or  grant  of  the  use  to  the  municipal  corporation  aud  to  the 
public,  is  admitted.'  And  it  may  perhaps  be  conceded  that  the  erec- 
tion and  maintenance  of  telegraph  and  telephone  poles,  if  deemed 
advisable  by  the  municipal  authorities,  is  one  of  the  new  uses,  and 

^Hopkins  v.  Baltimore  &  P.  B.  Go.  6  Mackey,  311,  13  Cent.  Rep.  398. 
^Pennsylvania  R.  Co.   v.  Mifih,  115  Pa.  514,  4  Cent.  Rep.  276;  Willis  v.  Erie 

Teleg.  &  Tcleph.  Co.  37  Minn.  347,  decided  by  a  divided  court. 
^Ferrenbach  v.  Turner,  86  Mo.  416. 


Chap.  VI.]  TELEGKAPII    AND    TELEPHONE    POLES.  97 

such  use  is  a  proper  use  of  the  street,"  and  yet  the  lot  owner  may 
•be  entitled  to  compensation,  as  for  a  use  not  coutemphited  in  the 
original  proceedings  creating  the  highway.  In  denial  of  the  right 
to  claim  compensation,  the  Massachusetts  court,  Avith  the  dissent 
■of  two  judges  out  of  seven  constituting  the  court,  is  found.'  And 
the  Missouri  court  reaches  the  same  conclusion  with  a  dissent  of 
two  of  the  judges  in  a  court  of  live  members.'  The  Supreme 
Court  of  Minnesota  was  equally  divided  upon  the  question.''  The 
New  York  Superior  Court  held,  the  fee  of  the  streets  being  in 
the  city,  it  was  so  vested  in  it  in  trust,  for  limited  purposes,  and 
the  lot  owner  could  recover  for  this  new  use.*  The  supreme 
court  of  New  York  at  special  term  has  held  that  the  lot  owner 
was  entitled  to  compensation,'  and  the  United  States  Circuit 
Court  for  the  Northern  District  of  Illinois,  the  Supreme 
Court  of  that  State  and  the  Court  of  Chancery  of  New  Jersey 
reach  the  same  result.'  Decisions  have  been  made  that  a  tele- 
phone or  telegraph  company  cannot  invade  the  right  of  way  of  a 
railroad,*  nor  may  a  railroad  place  poles  upon  its  right  of  way  for 
■commercial  use  without  additional  compensation,"  though  it  may 
for  its  own  use.'°  How.  far  the  latter  rulings  may  determine  the 
■question  of  the  rights  of  lot  owners  on  streets  is  not  clear,  as  a 
•condemnation  for  railroad  purposes  does  not  include  a  street 
easement,  although  the  last  may  be  held  by  some  courts  to  include 
the  use  by  railroads. 

^Julia  Bldg.  Asso.  v.  Bell  Teleph.  Co.  88  IMo.  258,  5  West.  Rep.  357;  HocMt 
V.  State,  105  Ind.  250,  2  West.  Rep.  764;  State  v.  Nebraska  Teleph.  Co.  17 
Neb.  126;  Belcher  Sugar  Ref.  Co.  v.  St.  Louis  Grain  E'ev.  Co.  82  Mo.  121; 
State  V.  Bell  Teleph.  Co.  36  Ohio  St.  296;  Muiin  v.  Illinois,  94  U.  S.  113, 
24  L.  ed.  77;  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155,  24  L.  ed.  94; 
Peik  V.  Chicago  &  N.  W.  R.  Co.  94  U.  S.  164,  24  L.  ed.  97. 

'^Pierce  v.  Drew,  136  Mass.  75,  49  Am.  Rep.  7. 

^Julia  Bldg.  Asso.  v.  Bell  Teleph.  Co.  88  Mo.  258,  5  West.  Rep.  357. 

'^Willis  V.  Erie  Teleg.  &  Teleph.  Co.  37  Minn.  347. 

^Metropolitan  Teleph.  &  Teleg.  Co.  v.  Colwell  Lead  Co.  67  How.  Pr.  365. 

■^Dusenbury  v.  Mutual  Teleg.  Co.  11  Abb.  N.  C.  440. 

"> Atlantic  &  P.  Teleg.  Co.  v.  Chicago,  R.  L  &  P.  R.  Co.  6  Biss.  158;  Board 
of  Trade  Teleg.  Co.  v.  Barnett,  107  111.  507,  47  Am.  Rep.  453;  Broome  v. 
New  York  &  N.  J.  Teleph.  Co.  42  N.  J.  Eq.  141,  5  Cent.  Rep.  874. 

^SoutMcestern  R.  Co.  v.  Southern  &  A.  Teleg.  Co.  46  Ga.  43;  Atlantic  &  P. 
Teleg.  Co.  v.  Chicago,  R.  L  &  P.  R.  Co.  6  Biss.  158. 

^Western  U.  Teleg.  Co.  v.  Rich,  19  Kan.  517,  1~  Am.  Rep.  159;  American 
Teleph.  &  Teleg.  Co.  v.  Pearce,  71  Md.  535,  7  L.  II.  A.  200. 

^''American  Teleph.  &  Teleg.  Co.  v.  Pearce,  71  Md.  535,  7  L.  R.  A.  200. 
7 


98  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

h.  Drains  and  Electric,  Gas  and  Water  Con- 
ductors. 

"Where  water  pipes  had,  without  consent  of  the  owner  of  the 
soil,  been  laid  in  the  bed  of  a  highway,  an  injunction  to  restrain 
the  continuance  of  the  nuisance  was  granted.' 

But  an  injunction  to  compel  the  removal  of  a  building  erected 
upon  land  designated  upon  a  plat  as  a  street,  but  which  did  not 
appear  to  have  been  accepted  by  the  public  or  used  as  a  highway ,^ 
was  refused." 

There  is  a  clear  distinction  between  the  use  of  streets  for  drains,, 
sewers  and  for  gas  and  water  pipes,  and  for  the  conducting  of 
electric  wires  under  ground,  and  the  establishment  of  telegraph, 
and  telephone  lines  above  ground  within  the  limit  of  the  high- 
way. When  a  highway  is  laid  out,  it  may  be  said  in  general 
terms  that  the  whole  beneficial  use  of  the  soil  is  temporarily 
taken  from  the  owner  and  appropriated  to  the  public  use;  and  or- 
dinarily the  laying  of  underground  pipes  in  such  a  manner  as  to- 
cause  no  injury  to  the  adjoining  land  does  not  deprive  the  owner 
of  the  fee  of  any  use  which  he  could  otherwise  have  made  of  the 
soil.  Ordinarily,  therefore,  he  cannot  be  deemed  to  suffer  any 
legal  injury  from  the  laying  of  underground  pipes.  And  in  fact 
sewers  and  drains  and  cable  inclosures  are  built  more  directly  hj 
public  oificers  and  usually  are  of  direct  benefit  to  the  abutting 
estates  as  well  as  to  the  streets  themselves.  Gas,  water  and  tele- 
graph or  telephone  pipes  are  likely  to  be  of  direct  service  in 
furtherance  of  the  purpose  for  which  streets  are  laid  out,  aiding 
public  travel  and  prompt  communication  and  the  convenience  and. 
safety  both  of  the  public  and  the  lot  owner.  Providing  prompt 
means  of  notifying  the  police  and  fire  departments  of  riot,  rob- 
bery or  fire  is  within  the  reasonable  use  of  the  street.  It  is  cer- 
tain such  use  for  the  transmission  of  messages  is  within  their  use; 
as  post  roads.' 

^Ooodson  V.  Richardson,  L.  R.  9  Ch.  221. 

^Pavonia  Land  Asso.  v.  Feenfer  (N.  J.  .Jan.  3,  1887)  5  Cent.  Rep.  640. 

'Western  U.  Teleg.  Co.  v.  New  York,  38  Fed.  Rep.  552,  3  L.  R.  A.  449. 


CHAPTER  YII. 

RIGHTS  OF  PUBLIC  IN  HIGHWAY. 

Sec.  13.  Negligence  Creating  Nuisance  in  Higlnoay. 

a.  Permitting  Street  Obstruction  for  Building  Purposes. 

b.  Permitting  Use  for  Business  Purposes  and  Pleasure. 

c.  Oiuner  of  Property  on  Street  must  not   Create  Nuisance  in 

Higlnoay. 

d.  Erecting  Buildings  and  MaTcing  them  Secure. 

e.  Building  Rendered  Insecure  by  Act  of  Stranger, 

f.  Snow,   Ice    or   Material    Falling  from  Roof. — Repairing 

Building. 

g.  Ajjerture  in  Sideiualh. 

Section  13.—  JYegUgeitcG    Creating    JVuisance     in 

Highway. 
a.   Fermitting   Street    Ohstruction   for  Building 

Purposes. 

The  Legislatures  have  in  most  States  expressly  enacted  that  the 
cities  shall  not  have  power  to  authorize  the  placing  or  continuing 
of  any  encroachments  or  obstructions  upon  any  street  or  sidewalk, 
except  the  temporary  occupation  thereof  during  the  erection  or 
repair  of  a  building  on  a  lot  opposite  the  highway.' 

A  municipal  corporation  may  lawfully  permit  its  streets  to  be 
temporarily  used  for  building  purposes.  Such  a  corporation  is 
not  an  insurer  of  the  safety  of  its  streets.'  The  general  charter 
powers  of  a  corporation,  and  the  right  to  exercise  special  powers, 
are  impliedly  reserved  in  every  grant  of  property  to  private  in- 
dividuals, and  in  every  license  to  use  or  obstruct  the  streets."  A 
license  by  legislative  Act,  legalizing  obstructions  in  the  streets  of  a 
municipality  which  otherwise  would  be  nuisances,  is  dependent  on 
the  legislative  will,  and  may  be  withdrawn,* 

^Colien  y.Mw  York,  113  N.  Y.  537;  Consolidation  Act,  §  86,  subd.  4  pp. 

25,  26;  People  v.  New  York,  59  How.  Pr.  277;  Ely  v.  ''Campbell,  59  How. 

Pr.  333;  Lavery  v.  Uannigcm,  20  Jones  &  S.  463;  Bobbins  v.  Chicago,  71 

U.  S.  4  Wall.  657,  18  L.  ed.  427. 
*Warsaw  v.  Dunlap,  112  Ind.  576;  Ring  v.  Cohoes,  77  N.Y.  83. 
*  *  Winter  v.  Montgomery,  83  Ala.  589. 


100  IMPOSED    DUTIES,  PERSONAL,  [Part   I. 

The  duties  and  liabilities  imposed  by  its  charter  for  the  safety 
of  the  public  cannot  be  abrogated  or  dispensed  with  by  an  ordi- 
nance of  the  city  council;  and  reason  and  public  policy  supple- 
ment the  law  in  holding  cities  responsible  for  the  neglect  or  omis- 
sion of  due  diligence  in  the  discharge  of  their  charter  duties.  In 
McCoull  V.  Manchester  (Ya.  Dec.  13,  188S),  2  L.  K  A.  691,  the 
defendant  city  pleaded  its  own  ordinance,  allowing  building  ma- 
terials to  be  put  in  the  streets,  and  setting  forth  that  the  pile  of 
sand  which  had  caused  the  injury  was  being  used  at  the  time  b}'' 
the  contractor  for  building  purposes;  and  the  court  instructed  the 
jury  that  the  existence  of  the  ordinance  was  a  complete  and  ab- 
solute defense  to  the  city  itself,  and  relieved  it  from  all  amenabili- 
ty to  the  law,  which  declares  it  to  be  its  duty  to  keep  its  streets 
and  highways  in  safe  condition  for  the  use  of  the  public,  and, 
where  necessary,  to  have  a  light  or  barrier,  or  other  signal,  to  warn 
travelers  of  the  temporary  and  necessary  danger  in  the  street. 
This  was  held  error  on  appeal.' 

The  fact  that  a  city  has  given  to  the  land  owner  a  license  to  use 
a  street  for  the  deposit  of  building  material  does  not  suspend  the 
.duty  of  the  city  to  exercise  reasonable  care  to  keep  it  in  safe  con- 
dition.^ Scaffolding  suspended  from  the  eaves  of  a  house  is  not 
necessarily  a  nuisance.  It  is  not  prohibited  by  an  ordinance  pro- 
hibiting hanging  goods,  etc.,  in  front  of  a  building.'  Materials 
for  building  may  be  placed  in  the  street,  provided  it  be  done  in 
the  most  convenient  manner.* 

b.   Permuting   Use   for    Business  Purposes   and 

Pleasure. 

The  lease  of  a  street  for  private  uses  is  void.^  When  a  city, 
without  the  pretense  of  authority  and  in  direct  violation  of  a 
statute,  assumes  to  grant  to  a  private  individual  the   right   to 

'See  Nohle  v.  Riclimond,  31  Gratt.  271;  Sawyer  v.  Corse,  17  Gratt.  230;  Rich- 
mond V.  Courtney,  32  Gratt.  798;  Orme  v.  Richmond,  79  Va.  86;  Qordon 
V.  Richmond,  83  Va.  436;  Covington  v.  Bryant,  7  Bush,  248. 

^Grant  v.  Stillwater,  35  Mina.  242;  Brusso  v.  Buffalo,  90  N.  Y.  679. 

^Ilexamer  v.  Webb,  101  N.  Y.  377,  2  Cent.  Rep.  439. 

*  Chicago  v.  Bobbins,  67  U.  S.  2  Black,  418,  17  L.  ed.  298. 

^Marine  Ins.  Co.  v.  St.  Louis,  2.  M.  <&  S.  B.  Co.  41  Fed.  Rep.  643. 


Chap.  YII.]    PERMITTING    USE    FOR    BUSINESS    AND    PLEASURE,        101 

obstruct  the  public  highway  while  in  the  transaction  of  his 
private  business,  and,  for  such  privilege,  takes  compensation, 
it  must  be  regarded  as  itself  maintaining  a  nuisance  so  long  as  the 
obstruction  is  continued  by  reason  of  and  under  such  license;  and 
it  must  be  liable  for  all  damages  wdiich  may  naturally  result  to  a 
third  party  who  is  injured  in  his  person  or  his  property  by  reason 
or  in  consequence  of  the  placing  of  such  obstruction  in  the  high- 
way.^ 

One  doing  business  on  a  street  in  a  populous  city  has  a  right  to 
obstruct  the  sidewalk  temporarily  for  the  necessities  of  his  busi- 
ness, if  exercised  in  a  reasonable  manner  and  so  as  not  to  unnec- 
essarily obstruct  and  incumber  it,  and  he  is  under  no  obligation  to 
furnish  pedestrians  a  safe  passage  around  the  obstruction,^  and  he 
becomes  liable  only  for  his  negligence  in  the  use  of  the  privilege.' 

Where  a  merchant  obstructs  a  sidewalk  for  an  hour  or  more  at 
a  time,  amounting  in  all  to  four  or  five  hours  a  day,  by  a  bridge  made 
of  skids,  from  his  building,  to  convey  goods  to  and  from  his  trucks, 
it  constitutes  a  public  nuisance.*  But  the  use  of  a  bridge  made 
of  skids  to  load  or  unload  a  single  truck,  by  placing  it  from  the 
stoop  of  the  building  across  the  sidewalk  to  such  truck,  not  ob- 
structing the  street  for  any  considerable  time,  is  not  a  nuisance,' 
and  one  doing  business  on  a  city  street  may  obstruct  the  sidewalk 
temporarily  for  the  necessities  of  business,  as  by  using  skids  to 
load  merchandise.'  The  necessity  required  to  justify  the  use  of 
a  sidewalk  by  placing  skids  thereover  in  front  of  a  store,  for  the 
purpose  of  unloading  heavy  barrels  from  a  wagon,  need  only  be 
reasonable.'' 

The  occupancy,  for  drainage  purposes,  of  an  alley  dedicated  by 
parol  without  any  restrictions  as  to  its  use,  by  putting  under  it 
connections  w4th  city  sewers,  is  a  proper  use  of  it.* 

^Cohenv.  New  York,  113  N.  Y.  533,  4  L.  R.  A.  406;  Warsaw  v.  Dunlap,  113 

Ind.  579. 
^SeelFefe/i  v.  Wilson,  101  N.  Y.  254,  2  Cent. Rep.  749,  and/w7te?w  v.  RoMnson, 

66  Wis.  638,  1  L.  R.  A.  178,  and  notes. 
^Kelly  V.  Doody,  116  N.  Y.  575;  Moynihan  v.  Whidden,  143  Mass.  287,  3 

New  Eng.  Rep.  363;  Samyn  v.  McClosky,  2  Ohio  St.  536. 
4  ^Callanan  v.  Oilman,  107  N.  Y.  360,  9  Cent.  Rep.  900. 
^WeUTi  V.  Wilson,  101  N.  Y.  254,  Callanan  v.  Oilman,  107  N.  Y.  360. 
''Jochem  v.  Robinson,  66  Wis.  638,  1  L.  R.  A.  178;  Rex  v.  Jones,  3  Camp.  230. 
*McElhone's  App.  118  Pa.  618;  Sndth  v.  Simmons,  103  Pa.  33. 


102  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

The  entire  street  is  for  the  use  of  the  public;  and  an  unauthor- 
ized use  of  part  of  it  for  a  market  is  a  puhhc  nuisance.' 

Subject  to  such  rights  as  are  vested  in  the  owners,  a  city  may 
give  permission  for  proper  purposes  for  the  use  of  the  pubhc 
streets,  and  the  authorities  can  properly  allow  them  to  be  used  for 
pleasure  traveling,  either  by  vehicles  drawn  by  horses  or  sleds 
drawn  by  children,  or  for  coasting." 

c.  Owner  of  Property  on  Street  must  not  Create 
JStuisance  in  Highway. 

The  owner  of  property  abutting  on  a  street  is  liable  if  he  in  any 
way  creates  or  causes  a  public  nuisance  in  the  highway  adjacent 
to  his  estate  by  means  of  which  a  traveler,  while  using  due  care 
for  his  own  protection  and  safety,  suffers  an  injury  to  his  jDcrson; 
and  it  makes  no  difference  how  or  in  what  manner  the  nuisance 
is  created,  whether  it  is  by  removing  snow  from  his  own  premises 
and  piling  it  up  in  the  public  street,  in  such  an  accumulated  mass 
as  to  essentially  interfere  with  its  use  and  enjoyment,'  and  impede 
public  travel,  or  in  any  other  way  or  by  any  other  means  what- 
ever. The  same  consequences  would  follow  if  he  erected  his 
building  upon  the  highway,*  or  constructed  it  so  that  it  would 
necessarily  become  a  public  nuisance,  or  if,  having  lawfully  and 
properly  erected  and  placed  it  upon  his  own  land,  he  suffer  and 
allow  it  to  fall  into  such  waste  and  decay  that  in  the  end  it  would 
necessarily  become  a  nuisance  and  thereby  cause  an  unlawful 
obstruction  to  public  travel."  In  short,  in  all  these  cases  he  would 
be  liable  generally  to  prosecution  by  indictment.  He  would  be 
liable  at  common  law  or  by  statute  in  most  of  the  States.  But  as 
the  owner  and  occupant  of  land  and  buildings  abutting  upon  the 
public  street,  he  is  not  responsible  to  individuals  for  injuries  re- 
sulting from  defects  not  caused  by  him,  and  want  of  repair  in  the 
sidewalk,  or  by  means  of  snow  and  ice  accumulated  by  natural 
causes  therein,  although  by  ordinances  of  the  city  it  is  made  the 

^McDonald  v.  Newark,  43  N.  J.  Eq.  136;  St.  John  v.  New  York,  3  Bosw.  483. 
*ArtTier  v.  Cohoes,  56  Hun,  36;  Jackson  v.  Castle,  80  Me.  119. 
^Pnme  v.  Twenty-Third  St.  E.  Co.  1  Abb.  N.  C.  63;  Bing  v.  Co/toes,  77N.Y.  83. 
*Com.  V.  Moorehead,  118  Pa.  344;  Langan  v.  Atchison,  35  Kan.  318. 
^Wilkinson  v.  Detroit  S.  &  8.  Works,  73  Mich.  405;    Tucker  v.  Illinois  C.  B. 
Co.  (La.  Jan.  29,  1890)  7  So.  Rep.  124. 


Ohap.  YII.]  ERECTING    BUILDINGS.  103 

duty  of  abutters,  under  prescribed  penalties,  to  keep  the  sidewalk 
-adjoining  their  estates  in  good  repair,  and  seasonably  to  remove 
all  snow  and  ice  therefrom.  Such  ordinances  are  valid  and  work 
which  is  enforced  under  them  relieves,  to  the  extent  of  its  cost  or 
value,  the  city  from  charges  to  which  it  would  otherwise  be  nec- 
essarily subjected  in  the  discharge  of  its  municipal  duties.' 

<3.  Erecting  Buildings  and  Making  Them  Secure. 

It  is  a  matter  of  common  knowledge  and  experience  that  when 
a  man  is  breaking  and  handling  bricks  for  the  construction  of  a 
wall  some  of  the  material  may  fall,  although  the  workman  in 
handling  and  laying  it  is  in  the  exercise  of  ordinary  care.  The 
cause  of  the  fall  in  such  a  case  may  be  accidental,  but  it  is  an  acci- 
dent which  the  builder  of  the  wall,  in  view  of  the  danger  to  life 
and  limb,  will  be  bound  to  contemplate  and  provide  against  by 
safeguards  or  barriers,  so  that  the  traveler  may  not  be  exposed  to 
iniurv.  Not  to  do  so  would  be  an  "  omission  to  do  somethinof 
which  a  reasonable  man,  guided  by  those  considerations  which 
ordinarily  regulate  the  conduct  of  a  man  of  affairs,  would  do  ;'" 
and  therefore  a  person  who  is  constructing  a  wall,  abutting  upon  a 
highway,  and  who  fails  to  provide  safeguards  and  barriers  to  pre- 
vent injury  to  a  passing  traveler  from  the  falling  brick,  may  be 
liable  with  the  city  for  injuries  received,  although  his  servants  are 
not  guilty  of  negligence  in  breaking  and  handling  the  bricks,' 

It  is  the  duty  of  proprietors  of  structures,  erected  along  a  high- 
way, to  exercise  reasonable  care  to  prevent  their  becoming  unsafe 
to  passers-by.  The  presumption  to  a  traveler  of  a  street  is  not 
that  adjacent  buildings  are  unsafe  and  liable  to  fall  and  that  rea- 
sonable care  requires  him  to  hurry  on.  He  naturally  supposes 
otherwise ;  and  such  supposition  is  in  accord  with  the  public  duty 
of  proprietors  of  structures,  along  such  a  highway,  to  prevent 
their  becoming  unsafe  to  passers-by.     There  are  many  instances  in 

^Ooddard,  Petitioner,  16  Pick.  504;  Moore  v.  Gadsden,  93  N.  Y.  12;  Knupfle  v. 

Knickerbocker  Ice  Co.  84  N.  Y.  488;  Jansen  v.  Atchison,  16  Kan.  358;  Ilee- 

ney  v.  Sprague,  11  R.  I.  456;  Fiynn  v.  Canton  Co.  40  Md.  312;   Weller  v. 

McGormick,  47  N.  J.  L.  397. 
^BlythY.  Birmingham  Waterworks  Co.  11  Exch.  781,  784;  Samijn  v.  McCloa- 

key,  2  Ohio  St.  536;  Lumparter  v.  Wallbaum,  45  III.  444. 
^Jager  v.  Adams,  123  ]^Iass.  26;  Eehberg  v.  New  York,  91  i^.  Y.  137, 


104r  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

which  it  is  not  incompatible  with  the  lawful  use  of  a  street  to  halt 
while  passing  along.'  Thus,  the  conduct  of  a  child  in  pausing 
only  for  a  moment  or  two  to  gaze  with  childish  curiosity  at  some 
workmen  shingling  a  roof  would  not  bar  the  recovery  for  injury 
suffered  by  a  fence  falling  upon  her.^ 

It  is  the  duty  of  the  owner  of  a  building  under  his  owij  control 
and  in  his  own  occupation,  as  between  himself  and  the  public,  to 
keep  it  in  such  safe  condition  that  travelers  on  the  highway  shall 
not  suffer  injury.'  If  a  building  is  constructed  by  the  owner  or 
through  his  directions  so  as  to  be  insecure  and  unsafe,  and  of  such 
inherent  weakness  as  to  fall  without  external  or  internal  forces 
acting  upon  it  other  than  the  ordinary  forces  to  which  it  would  be 
subject  in  the  locality  and  from  the  business  carried  on  in  it,  it  is  a 
nuisance ;  and  the  owner  cannot  be  relieved  from  liability  for  in- 
juries thereby  caused  to  a  person  lawfully  in  the  public  highway 
adjoining,  on  the  ground  that  it  was  built  by  an  independent  con- 
tractor.* In  Sessengut  v.  Posey,  67  Ind.408,  the  owner  of  prem- 
ises was  held  liable  for  falling  walls,  although  they  were  in 
possession,  at  the  time,  of  a  contractor. 

Where  an  injury  occurs  from  the  owner  permitting  walls  which 
had  been  weakened  by  fire  to  remain  unprotected,  he  is  liable 
for  the  injury.^  The  owner  of  a  burnt  building  is  liable  for  dam- 
ages caused  by  the  falling  of  one  of  its  walls  which  had  been  neg- 
ligently left  standing.* 

e.   Building    Rendered  Insecure    hy  Act   of 
Stranger. 

It  is  undoubtedly  true  that  when  a  stranger  does  a  negligent  or 
unlawful  act  on  the  land  or  building  of  another,  and  in  doing  that 
act  occasions  injury  to  a  third  person,  the  owner  of  the  land  or 
building  is  not  liable ;  but  when  the  wrongful  act,  as  in  Gray  v. 

1  "^Hussey  v.  Ryan,  64  Md.  426;  Chicago  v.  Keefe,  114  111.  222. 

^Oray  v.  Boston  Gas  Light  Co.  114  Mass.  149;  Khron  v.  Brock,  144  Mass.  516, 

4  New  Eng.  Rep.  426;  Baltimore  &  0.  R.  Co.  v.  Rose,  65  Md.  485,  3  Cent. 

Rep.  724;  Tucker  v.  Illinois  C.  R.  Co.  (La.  Jan.  29,  1890)7  So.  Rep.  124. 
*  Wilkinson  v.  Detroit  Steel  <&  Spring  Works,  73  Mich.  405. 
''Glover  X.  Mersman,  4  Mo.  App.  90;  Reg.  v.  Watts,  1  Salk.  357;   Church  of 

the  Ascension  v.  Buckhart,  3  Hill,  193. 
^Anderson  v.  East,  117  Ind.  126,  2  L.  R.  A.  712,  note. 


Chap.    VII.]  MATERIAL   FALLING    FKOM    KOOF.  1U5- 

Boston  Gaslight  Co.^  114  Mass.  149,  causes  a  chimney  which  was 
adjacent  to  the  highway  to  become  unsafe  and  liable  to  fall  by  reasoa 
of  the  strain  of  the  telegraph  wire,  and  this  condition  was  continued 
for  a  considerable  period  and  existed  at  the  time  of  the  injury,  the 
defendant  is  liable.  The  owner  of  a  building  is  bound,  as  between 
himself  and  the  public,  to  keep  it  in  such  proper  and  safe  condi- 
tion that  travelers  on  the  highway  shall  not  suffer  injury.'  It  is 
therefore  the  duty  of  the  owner  to  guard  against  danger  to  which 
the  public  is  exposed  from  anything  likely  to  fall  upon  the  side- 
walk from  the  roof  of  a  house,  and  he  is  liable  for  the  consequences 
of  having  neglected  to  do  so,  whether  the  unsafe  condition  was 
caused  by  himself  or  another  with  his  passive  consent  and  knowl- 
edge." Nor  can  the  owner  protect  himself  from  liability  because 
he  did  not  in  fact  know  that  the  building  was  unsafe,  if  by  any 
act,  knowingly  permitted  by  him,  such  insecurity  would  naturally 
follow.  He  is  bound  to  exercise  proper  care  required  under  the 
circumstances  of  the  case.'  So  as  to  a  private  hanging  lamp,  the 
duty  was  declared  absolute,  where  it  overhung  the  pavement.* 

f.    Snow,  Ice  or  Material  Falling  from  Roof.— Re- 
pairing Building. 

Khron  v.  Brock,  144  Mass.  516,  4  New  Eng.  Kep.  424,  was  an 
action  to  recover  damages  for  personal  injuries  occasioned  by  a. 
piece  of  zinc  which  fell  or  was  blown  by  the  wind  upon  the  plain- 
tiff from  the  roof  of  the  defendant's  house.  The  court  left  it  to- 
the  jury  to  determine  whether  the  plaintiff's  injury  was  caused  by 
the  unsafe  and  improper  condition  of  plaintiff's  building,  and 
whether  at  the  time  the  plaintiff  was  lawfully  on  the  street  or- 
sidewalk — which  it  was  claimed  was  obstructed  during  the  pro- 
cess of  the  building,  to  prevent  its  use  by  the  public  —  in  the 
exercise  of  due  care,  and  informed  the  jury  that  the  duty  of  an 

^Milford  V.  Holbrook,  9  Allen,  17;  SJiipley  v.  Fifty  Asuo.  101  Mass.  251,  and 
cases  cited;  Hadley  v.  Taylor,  L.  R.  1  C.  P.  53;  Kearney  v.  London,  B.  & 
8.  a  B.  Go.  L.  K.  6  Q.  B.  760;  Tucker  v.  Illinois  C.  B.  Co.  (La.  Jan.  29, 
1890)  7  So.  Rep.  124. 

^Coupland  v.  HardingTiam,  3  Camp.  398. 

^Khron  v.  Brock,  144  Mass.  516,  4  New  Eng.  Rep.  426;  Oray  v.  Boston  Gas 
Light  Co.  114  Mass.  149;  Van  Winkle  v.  Am.  8.  B.  Ins.  Co.  (N.  J.  Feb. 
25,  1890)  19  Atl.  Rep.  472. 

*Tarry  v.  Ashton,  L.  R.  1  Q.  B.  Div.  314. 


106  IMPOSED    DUTIES,  PERSONAL.  [Part   I. 

owner  to  keep  his  building  in  sucli  a  condition  that  a  lawful  occu- 
pant of  adjacent  property  will  not  be  injured  bj  it,  does  not 
create  against  him  a  liability  for  an  accident  caused  by  the  wrong- 
ful interference  by  a  third  person,  or  for  an  inevitable  accident ; 
that  is,  for  one  produced  by  such  a  cause  as  a  superior  and  unan- 
ticipated natural  force,  like  a  stroke  of  lightning,  or  a  tornado  of 
such  violence  as  could  not  reasonably  be  expected ;  but  it  does 
leave  him  liable  for  all  accidents  produced  by  the  unsafe  condition 
of  the  house  in  connection  with  winds  or  storms  ordinarily  inci- 
dent to  our  climate.  On  appeal  in  affirming  the  judgment  it  was 
said :  "  It  is  the  duty  of  an  owner  of  a  building  under  his  own 
oontrol  and  in  his  own  occupation,  as  between  himself  and  the 
public,  to  keep  it  in  such  safe  condition  that  travelers  on  the  high- 
way shall  not  suffer  injury."  Gray  v.  Boston  Gas  Light  Co.,  114 
Mass.  149,  and  cases  therein  cited,  were  referred  to  as  supporting 
this  rule.  But  he  is  under  no  obligation  to  keep  the  unfinished 
building  safe  for  persons  not  lawfully  entering  it.^ 

Where  the  wall  of  defendant's  building  was  on  the  line  of  the 
highway,  but  the  portion  of  the  roof  projecting  over  the  high- 
way was  a  part  of  the  roof,  as  the  building  was  constructed  and 
maintained,  if  injury  resulted  therefrom,  it  was  incidental  to  the 
construction  and  use,  by  the  defendants,  of  their  property.  Nor 
would  such  use  of  the  property  be  less  properly  described  as  care- 
less and  negligent,  because  it  was  also  distinctly  wrongful." 

One  who  violates  a  duty  owed  to  others,  or  who  commits  a  tor- 
tious or  wrongfully  negligent  act,  is  liable  for  all  the  consequences 
which  ensue  in  the  usual  and  natural  course  of  events,  though 
they  are  produced  immediately  by  intervening  causes,  if  the  latter 
were  set  in  motion  by  the  original  wrongful  act.' 

That  a  horse,  struck  by  falling  ice  or  snow,  would  start,  and 
would  thus  be  liable  to  injure  a  person  standing  near  or  upon  the 
wao-on,  and  who  was  engaged  in  loading  or  unloading,  is  so  en- 
tirely according  to  the  natural  or  usual  sequence  of  events  that  it 

^Roulston  V.  Clai%  3  E.  D.  Smith,  36G;  CaHtle  v.  Parlcer,  18  L.  T.  N.  S.  367; 
Willy  V.  Mulledy,  78  N.  Y.  310;  Campbells.  Lunsford,  83  Ala.  512. 

^Smethurst  v.  Barton  Square  Independent  Congregational  CAwrcA,  148  Mass.  231. 

^FlemiJig  v.  Beck,  48  Pa.  309,  313;  Milwaukee  &  St.  P.  B.  Co.  v.  Kellogg,  94 
U  S  469,  24  L.  ed.  256;  Forney  v.  Ooldsmacher,  75  Mo.  113;  West  Ma- 
honey  Ticp.  V.  Watson,  116  Pa.  344;  Pittsburgh,  C.  &  St.  L.  B.  Co.  v. 
Conn,  104  Ind.  64,  1  West.  Rep.  901. 


Chap.  VII.]  MATEKIAL    FALLING    FKOM    ROOF.  107 

cannot  be  necessary  to  submit  the  question  whetlier  one  occurrence 
mi<^ht  probably  be  expected  to  follow  the  other.' 

It  is  well  settled  that  one  who  violates  a  duty  owed  to  others,  or 
who  commits  a  tortious  or  wrongfully  negligent  act,  is  lialile,  not 
only  for  those  injuries  which  are  the  direct  and  immediate  conse- 
quences of  his  act,  but  for  such  consequential  injuries  as,  according 
to  common  experience,  are  likely  to,  and  in  fact  do,  result  from 
his  act." 

•  The  owner  of  a  lot  abutting  on  a  public  street  in  a  city  has  no 
right  to  erect  a  building  on  it  with  a  roof  so  constructed  that  ice 
and  snow  collecting  on  it  will  naturally  and  probably  fall  upon  the 
adjoining  sidewalk  below,  thereby  exposing  foot  passengers  to 
bodily  injury  ;  and  if  he  does  so  construct  it,  he  is  liable,  without 
other  proof  of  negligence,  to  a  person  injured  by  the  falling  ice 
or  snow  while  traveling  on  the  sidewalk  with  due  care.^  But  if 
permitted  by  ordinance  and  free  from  negligence,  and  the  dis- 
charge pipe  is  properly  constructed,  he  may  convey  water  to  the 
pavement  without  liability  for  ice  forming  therefrom.* 

If  one  gives  his  servant  general  directions  to  throw  the  snow 
from  the  roof  of  his  house,  which  is  situate  upon  a  public  street, 
enjoining  no  caution  and  suggesting  no  mode  of  doing  it,  to  pre- 
vent injury,  nor  placing  the  servant  under  any  restriction  against 
projecting  it  on  the  walk,  he  is  responsible  for  any  negligence  on 
the  part  of  the  servant,  or  of  the  one  whom  he  employs,  no  mat- 
ter how  carefully  his  roof  is  constructed.^ 

Where  a  horse  is  frightened  by  a  moving  street  car  and  runs 
away,  and  the  driver  is  injured  by  a  collision  with  a  dangerous 
obstruction  in  the  street,  the  obstruction  is  the  proximate  cause ;' 
but  where  one  walking  on  the  street  slipped  on  account  of  ice, 
and,  falling,  struck  her  head  on  a  projecting  cellar  door,  the  al- 

^Smethurst  v.  Barton  Square  Independent  Congregational  Church,  148  j\Iass 
261,  2  L.  R.  A.  695;  Lowery  v.  Manhattan  B.  Co.  99  N.  Y.  158. 

^McDonald  v.  SneHing,  14  Allen,  290;  Metallic  Compression  Casting  Co.  v. 
Fitchhurg  R.  Co.  109  Mass.  277;  Berry  v.  Flilner,  118  IVIass.  131;  Welling- 
ton V.  Downer  E.  0.  Co.  104  Mass.  64;  Ei-Jigott  v.  New  York,  96  N.Y.  204. 

^Hannem  v.  Pence,  40  Minn.  127;  Shipley  v.  Fifty  Asso.  106  Mass.  194. 

*Kirhyv.  Boylston  Market  Asso.  14  Gray,  249;  Wemlick  v.  McCotter,  87  N. 
Y.  122. 

■^Althorfy.  Wolfe,  22  N.  Y.  355. 

*  Campbell  V.  Stillwater,  33  Minn.  308;  Middlestadt  v.  Morrison  ("Wis  March 
18,  1890)  44  N.  W.  Rep.  1103. 


]08  IMPOSED    DUTIES,  PERSONAL.  [Part    L 

leged  negligence  in  maintaining  such  door  did  not  contribute  to 
the  injury/ 

Where  a  horse  took  fright  at  a  hole  in  a  culvert,  and  by  the 
conduct  of  the  horse  the  driver  was  thrown  from  the  wagon  into 
the  ditch,  the  hole  must  be  considered  as  the  remote  cause,  its 
connection  with  the  accident  being  casual  and  not  causal."  E'or 
■would  a  land  slide  passing  over  one's  premises,  injuring  adjoining 
grounds,  render  him  liable/ 


g.  Aperture  in  Sidewalh. 

The  permanent  maintenance  of  an  aperture  in  the  sidewalk  of 
a  public  street  by  the  owners  and  occupants  of  an  adjoining 
building  with  whose  interior  it  communicates  by  an  underground 
passage,  to  be  used  by  them  occasionally  and  reasonably  for  the 
introduction  of  articles  through  the  same  into  such  building,  does 
not  necessarily  become  a  nuisance  unless  left  in  such  condition  as 
to  become  dangerous  to  travelers  on  the  highway,  where  the 
right  to  such  maintenance  and  use  has  been  granted  by  the  owner 
of  the  land,  to  be  used  as  a  highway  and  as  an  easement  therein 
in  such  manner  as  to  be  paramount  to  the  easement  of  the  public 
therein  to  use  it  as  a  highway.  Or  the  easement  may  be  granted 
by  the  State  or  its  representatives,  and  be  therefore  lawful.  The 
ownership  of  such  an  easement  takes  away  from  such  aperture 
the  character  of  a  nuisance,  so  far  as  such  character  makes  its 
author  or  maintainer  an  absolute  guarantor  for  the  safety  of  all 
travelers  on  the  highway,*  and  leaves  him  simply  bound  to  use 
proper  precaution  to  protect  them  from  injury  by  it.'  In  the 
absence,  however,  of  proof  of  the  authority  for  making  it,  or  of 

^Hunter  v.  Wanamaker  (Pa.  Jan.  25,  1886)  2  Cent.  Rep.  70. 

^Spauldingy.Winslow,  74  Me.  533;  O'Brien  v.  McOlinchy,  68  Me.  557. 

^Brown  v.  McAllister,  39  Cal.  573. 

*Irvin  V.Wood,  4  Robt.  138;  Calder  v.  Smalley,  66  Iowa.  219;  Congrevev. 
Smith  18  N.  Y.  79;  Gridley  v.  Bloomington.  68  111.  50;  Portland  v.  Bich- 
ardson,  54  Me.  46;  Qrinnell  v.  Earner,  L.  R.  10  C.  P.  658. 

^Clifford  V.  Dam,  81  N.  Y.  52;  Jochem  v.  Robinson,  66  Wis.  638;  Sexton  v. 
Zett,  44  N.  Y.  430;  Bush  v.  Johnston,  23  Pa.  209;  Temperance  Hall  Asso. 
V  Oiles,  33  N.  J.  L.  260;  Ottumwav.  Parks,  43  Iowa,  119;  Omaha  Hotel 
Asso.  V.'  Walter,  23  Neb.  280;  Landru  v.  Lund.  33  Minn.  538;  Mclntire 
V.  Eoberts,  149  Mass.  450. 


Chap,  yil.]  APERTURE    IN    SIDEWALK.  109 

the  time  or  aiitlior  of  the  construction  of  such  an  existing  aperture 
in  the  sidewalk,  or  of  the  persons  by  whom,  the  manner  in  which 
and  the  period  during  which  it  had  been  used,  it  has  been  said 
that  the  owners  of  the  adjoining  building,  if  liable  at  all,  are 
prima  facie  liable  as  absolute  insurers  of  travelers  from  injury  by 
such  aperture,  and  are  not  exempt  from  liability  by  the  exercise 
■of  any  degree  of  care,  where  such  injury  has  occurred.'  But  in 
McCarthy  v.  Syracuses  46  N.  Y.  194,  it  was  held  that  when  the 
lot  owner's  line  runs  to  the  centre  of  the  street,  he  has  the  right 
to  excavate  under  the  surface  of  the  street  for  basement  purposes 
■or  any  use  not  inconsistent  with  the  public  way,  and  in  Illinois  in 
Gridley  v.  BlooTnington^  68  111.  50,  while  the  absolute  right  is  not 
admitted,  yet  it  is  said  a  license  will  be  presumed  to  have  been 
granted  on  the  condition  that  the  person  using  it  shall  exercise  more 
than  ordinary  care  and  expedition  in  the  prosecution  of  the  work.^ 
As  the  advantage  is  entirely  with  the  lot  owner  and  the  risk  on 
the  public  the  duty  should  be  imperative.  Everyone  who  main- 
tains or  uses  or  receives  profits  from  the  use  of  a  dangerous  construc- 
tion or  excavation  in  a  public  highway,  whether  such  maintenance 
and  use  be  legal  or  not,  is  bound  to  use  the  utmost  vigilance  and  care 
to  protect  those  traveling  on  such  highway  against  injury  from  it. 
While  an  aperture  in  a  highway  has  a  sufficient  covering  and  pro- 
tection over  it  to  prevent  accidents  its  creation  and  existence 
become  and  remain  simply  a  trespass  on  the  soil  over  which  the 
highway  passes,  for  which  its  maker  or  sustainer  is  liable  to  the 
owner.  The  ownership  of  such  an  easement  would  take  awav 
from  the  maker  of  such  an  aperture  the  character  of  a  trespasser, 
rendering  him  liable  absolutely  for  the  safety  of  all  travelers,  and 
merely  impose  upon  him  the  duty  of  using  due  diligence  to  pro- 
tect them.  It  is  not  necessarily  a  nuisance  because  it  exists  in  the 
soil  over  which  the  highway  passes;  otherwise  excavations 
spanned  by  bridges,  or  the  cavities  of  culverts  or  drains,  would  be 
equally  nuisances.  It  becomes  a  technical  nuisance  only  when  it 
is  so  insufficiently  covered  and  guarded  that  a  traveler  in  the  exer- 

^Hvglies  v.  Orange  Co.  M.  Asso.  56  Hun,  396;  Calderr.  Smalley,  66  Iowa,  219; 
Congreve  v.  Smith,  18  N.  Y.  79;   Gridley  v.  Bloomington,  68  111.  50;  Port- 
land V.  Richardson,  54  Me.  46;  GrinnellY.  Earner,  L.  R.  10  C.  P.  658. 
i  *Jennings  v.  VanSchaick,  108  N.  Y.  530;  Adams  v.  Fletcher,  17  11.  I.  — . 


110  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

cise  of  the  public  easement  of  passing  over  the  highway  is  injured 
by  falling  into  it  or  otherwise.* 

In  Wolf  V.  Kilpatrick,  101  N.  Y.  140,  2  Cent.  Eep.  81,  the 
defendants  were  the  owners  of  premises  which  had  vaults  for  the 
storage  of  coal  extending  under  the  sidewalk.  The  plaintiff  was 
injured  by  a  defect  in  the  stone  supporting  the  cover  of  the  open- 
ing, which  arose  while  such  premises  were  in  the  occupation  of 
one  McPherson  and  others,  who  were  tenants  having  entire  con- 
trol of  the  premises.  The  defect  was  not  one  of  original  construc- 
tion, but  occurred  through  the  act  and  interference  of  third 
persons  engaged  in  building  the  elevated  railway,  and  who  broke 
the  stone  supporting  the  iron  cover  so  that  it  turned  under  plain- 
tiff's weight  and  occasioned  the  injury.  It  was  not  shown  at 
what  time,  prior  to  the  accident,  the  defendants  became  owners. 
The  building  and  the  vault  were  constructed  by  McPherson,  and 
if,  at  the  time,  the  appellants  were  owners  and  responsible  for  the 
work  actually  done,  it  is  still  established  that  the  vaults  were  built 
under  a  permit  from  the  city  and  in  accordance  with  that  license. 
The  coal-hole  and  its  cover  were  safely  and  properly  constructed 
and  in  the  usual  and  permitted  manner.  The  case  is  not,  there- 
fore, within  the  doctrine  of  Clifford  v.  Dam,  81  IST.  Y.  52 ; 
Anderson  v,  Dickie,  1  Robt.  238;  Dygert  v.  ScJienck,  23  Wend. 
MO,  and  Congreve  v.  Morgan,  18  N.  Y.  84,  and  kindred  authorities. 

In  Clifford  v.  Dam  no  permission  or  license  from  the  munici- 
pality, to  make  the  excavation  was  either  pleaded  or  proved,  and 
the  construction  of  the  vaults  was  an  unauthorized  wrong  and  a 
nuisance,  for  the  consequences  of  which  the  owner  was  responsible 
irrespective  of  the  question  of  negligence.  There  was  the  same 
lack  of  special  authority  in  most  of  the  other  cases  referred  to. 

!Nor  is  the  case  one  in  which  the  owner  or  landlord  has  let  the 
premises  when  in  a  defective  and  dangerous  condition,''  for  the 
proof  establishes  no  such  ground  of  liability.     The  evidence  does 

^Bond  V.  Smith,  44  Han,  219;  Clifford  v.  Bam,  12  Jones  &  S.  391,  81  TST.  Y. 
52;  Jennings  v.  Van  Schaick,  108  N.  Y.  530;  Leigib  v.  Westerveit,  2  ])uer, 
618,  623;  Bellinger  v.  Mw  York  0.  R.  Co.  23  N.  Y.  42;  Selden,  v.  Dela- 
ware &H.  Canal  Co.  29  N.  Y.  634.  642;  Iricin  v.  Folder,  5  Robt.  482; 
Barnes  V.  Ward,  9  C.  B.  392;  Beck  v.  Carter,  68  N.  Y.  283;  Craves  v. 
Thomas,  95  Ind.  364;  Homan  v.  Stanley,  66  Pa.  464;  Uadley  v.  Taylor, 
L.  R.  1  C.  P.  53;  Sanders  v.  Reister,  1  Dak.  151;  Stratton  v.  Staples,  59 
Me.  94;  Fisher  v.  Thirkell,  21  Mich.  20;  Weller  v.  McCormick  (N.Y.  June 
9,  1890)  8  L.  R.  A.  798. 

^Davenport  v.  Ruckman,  37  N.  Y.  568. 


Chap.  VII.]  APERTUKE    IN    SIDEWALK.  Ill 

not  disclose  the  precise  legal  relation  existing  between  the  occu- 
pants and  owners.  The  former  were  tenants  of  some  kind, 
although  it  does  not  appear  that  any  rent  was  reserved  or  paid  ta 
the  owners,  or  that  the  latter  were  ever  in  possession  at  all.  On 
the  contrary,  McPherson  testified  that  from  the  time  he  built  the 
houses,  which  was  in  1857,  to  the  time  of  the  accident,  he  had 
the  care  and  control  of  the  premises  both  as  owner  and  occupant. 
So  that  the  recovery  must  stand,  if  at  all,  upon  the  sole  ground 
.  that  an  owner  who  has  constructed  vaults  under  the  sidewalk, 
lawfully  and  with  due  prudence  and  care,  and  transferred  posses- 
sion of  the  premises,  if  he  ever  had  it,  to  third  persons,  without 
covenant  on  his  part  to  repair,  is  liable  for  a  defect  in  the  vault 
covering  which  afterwards  occurs  throngh  the  interference  of  a 
stranger,  although  he  may  have  had  neither  notice  nor  knowledge 
of  the  defect. 

The  court  below  went  so  far  in  the  case  as  to  charge  that :  "  If 
the  plaintiff  sustained  injury  by  reason  of  the  defective  condition 
of  said  coal-hole  and  without  contributory  negligence,  then  said 
defendants  Kilpatrick  are  liable  in  damages," — to  which  there  was 
an  exception. 

The  court  was  asked  to  charge  that  "notice  of  the  alleged 
condition  of  the  coal-hole  must  have  been  given  to  the  Kilpatricks 
before  they  could  be  held  liable  as  owners,  when  the  possession 
was  in  McPherson;"  and  that  "  if  McPherson  was  in  the  control 
and  care  of  said  premises,  and  deriving  all  the  benefit  therefrom, 
he  alone  is  liable  to  the  plaintiff."  These  requests  were  refused, 
and  the  appellants  excepted. 

The  basis  on  which  the  case  was  sent  to  the  jury  was  still  more 
clearly  developed  in  the  course  of  the  charge.  After  stating  the 
liability  of  the  city  as  founded  upon  negligence,  and  involving 
notice,  actual  or  constructive,  of  the  alleged  defect,  the  court 
added :  "  The  law  is  a  little  more  severe  with  respect  to  the 
owners  of  the  premises  for  whose  benefit  this  hole  in  the  sidewalk 
has  been  authorized.  It  holds  them  to  a  stricter  liability  ;  a  party 
injured  by  falling  through  any  coal-hole  in  the  sidewalk  is  not 
bound  in  the  case  of  the  owner  of  the  premises  to  show  tliat  the 
owner  had  notice  that  the  hole  was  out  of  repair.  It  a])pears 
according  to  the  current  of  decisions  that  the  owner  of  the  prem- 


"113  IMPOSED    DUTIES,  PERSONAL.  [Part   L 

ises  is  bound  to  see  that  the  coal-hole  and  the  cover  over  it  afford 
just  as  safe  a  passage  to  the  wayfarer  as  any  other  portion  of  the 
sidewalk.  Therefore,  the  question  with  respect  to  these  defend- 
ants who  are  the  owners  of  the  property'  is  simply  how  much 
they  should  be  required  to  pay  the  plaintiff." 

The  doctrine  of  the  trial  court  was  thus  made  extremely  plain. 
Tt  went  upon  the  ground  that  the  defect  in  the  vault  stone  was  a 
nuisance  for  which  the  vault  owner  was  responsible,  though  out 
of  possession  and  control,  without  the  least  knowledge  of  the  fact, 
and  when  the  defect  was  produced  by  the  interference  and  mis- 
conduct of  strangers. 

It  may  be  that  the  condition  of  the  coal-hole  in  the  sidewalk 
became  a  nuisance,  while  McPherson  was  in  possession,  and  after 
the  stone  was  broken.'  But  if  so  the  court  of  appeals  declares 
that  the  party  responsible  can  only  be  the  person  M^ho  either  cre- 
ates the  nuisance  or  suffers  it  to  continue.  The  owners  did  not 
•create  it ;  that  was  the  wrongful  act  of  strangers.  How  can  it  be 
:said,  it  is  asked,  that  they  suffered  it  to  continue  and  so  failed  in 
their  duty  if  they  had  no  knowledge,  actual  or  constructive,  of  the 
defect,  and  were  out  of  possession  and  control?  That  can  only 
be  true  on  the  theory  that  every  owner  of  rented  property  in 
New  York  is  bound  to  watch  the  sidewalks  and  coal-holes  in  front 
-of  his  premises  and  protect  them  against  unauthorized  trespasses, 
and  is  bound  to  know  when  such  trespass  is  committed.  There 
are  no  cases  which  go  so  far  as  that. 

Commenting  upon  Swords  v.  Edgar,  59  IST.  T.  34,  it  is  said  that 
the  premises  in  that  case  were  a  pier  upon  which  the  public  having 
business  were  invited  to  go,  and  which  became  dilapidated,  where- 
by injury  arose.  That  condition  was  denominated  a  nuisance,  for 
which,  primarily,  the  lessee  in  the  actual  occupation  was  liable ; 
and  he  was  held  to  be  so  liable,  independent  of  any  covenant  to 
repair  and  solely  by  force  of  the  occupancy.  But  it  was  also  held 
that  the  lessors  were  liable,  and  upon  the  ground  that  the  pier 
was  unsafe  when  demised,  and  they  took  a  rent  for  it  in  that  con- 
dition. The  whole  drift  of  the  opinion  shows  that  the  landlord 
out  of  possession  is  not  responsible  for  an  after-occurring  nuisance, 
unless  in  some  manner  he  is  in  fault  for  its  creation  or  continu- 
ance.    His  bare  ownership  will  not  produce  that  result. 

^Swords  V.  Edgar,  59  N.  Y.  34. 


Oliap.  VII.]  APERTURE    IN    SIDEWALK.  113 

It  was  said  in  Cliffords.  Dam,  81  N,  Y.  52,  that  proof  of  author- 
ity from  the  municipality  to  build  the  vault  would  mitigate  the  act 
from  an  absolute  nuisance  to  an  act  involving  care  in  the  con- 
struction and  maintenance. 

In  Clancy  v.  Byrne,  56  K  Y.  133,  it  was  held  that  if  the 
premises  are  in  good  repair  wlien  demised,  but  afterward  become 
ruinous  and  dangerous,  the  landlord  is  not  responsible  therefor 
either  to  the  occupant  or  the  public,  unless  he  has  expressly 
.agreed  to  repair  or  has  renewed  the  lease  after  the  need  of  repair 
has  shown  itself;  and  in  the  recent  case  of  Edwards  v.  I^ew  York 
(&  H.  R.  R.  Co.,  98  N.  Y.  248,  the  circumstances  under  which 
the  landlord  may  become  liable  are  very  fully  considered,  with 
the  declared  result  that  "  the  responsibility  of  the  landlord  is  the 
■same  in  all  cases.  If  guilty  of  negligence  or  other  delictum  which 
leads  directly  to  the  accident  and  wrong  complained  of,  he  is  liable  ; 
if  not  so  guilty,  no  liability  attaches  to  him."  And  in  Wolf  v. 
Kilpatrick,  supra,  it  is  said  in  conclusion  that  it  is  quite  certain 
that  the  plaintiff  in  this  case  was  bound  to  establish  some  fault  of 
omission  or  commission  on  the  part  of  the  landlord  leading  to  the 
injury,  and  barely  showing  him  to  be  owner  is  not  enough.  There 
w\as  no  fault  of  commission.  That  is  conceded.  There  could  be  no 
fault  of  omission  unless  the  landlord  was  bound  to  repair  the 
defect,  had  actual  or  constructive  notice  of  the  defect  or  was 
bound  at  his  peril  to  discover  and  remedy  it.  No  such  duty  rested 
upon  him.  It  was  the  tenant's  duty  to  repair  the  stone ;  it  was 
his  neglect  which  left  it  unsafe,  and  the  landlord  was  not  shown 
to  be  in  any  respect  in  fault.  The  charge  made  him  liable  barely 
from  the  fact  of  ownership,  and  was  erroneous. 

An  owner  of  city  property,  who  constructs  and  maintains  in 
a  sidewalk  in  front  of  his  property  a  scuttle-hole  covered  in 
such  a  way  as  to  endanger  the  safety  of  persons  in  the  proper 
use  of  the  walk,  is  liable  to  a  person  injured  thereby  whether  the 
structure  is  made  and  maintained  by  the  authority  of  the  city  or 
not.'     But  the  ground  of  liability  is  negligence  in  the  construction 

^Calderv.  Smalley,  66  Iowa,  219;  Com.  v.  Boston,  97  Mass.  555;  Congrcvev. 
Morgan,  18  N.  Y.  84.  The  liability  is  based  upon  the  negligence  of  the 
lot  owner  in  using  the  sidewalk,  or  in  permitting  obstructions  thereon, 
or  upon  an  obligation,  by  contract  or  otlierwise,  resting  upon  iiim  to  keep 
the  highway  in  repair.  Rowdl  v.  Williams,  29  Iowa,  210;  OUumwa  v. 
8 


114  IMPOSED   DUTIES,  PERSONAL,  [Part  L 

or  covering,  or  repair  as  required  by  law,  as  was  held  in  Colder  v. 
Smalley,  QQ  Iowa,  219,  where  it  was  also  held  that  one  who^ 
without  authority  of  the  city  or  negligently  with  such  authority^ 
constructs  a  scuttle-hole  in  his  sidewalk  cannot  escape  liability  to 
one  injured  thereby  on  the  ground  that  the  lessee  of  the  property 
agreed  to  keep  the  hole  safely  covered,  and  evidence  of  such 
agreement  is  immaterial. 

Where  an  excavation  is  made  in  a  sidewalk  alongside  of  the  lot 
for  the  purpose  of  constructing  an  area  by  the  side  of  a  building 
to  be  erected,  it  is  the  duty  of  the  owner,  as  the  work  necessarily 
constitutes  an  obstruction  or  defect  in  the  street  dangerous  in  its 
use  unless  securely  guarded,  to  see  that  proper  protection  against 
injury  to  persons  passing  along  the  sidewalk  is  provided ;  and 
although  the  lot,  at  the  time  of  an  injury  from  such  failure  to 
protect  an  excavation,  is  in  the  exclusive  possession  of  a  contractor, 
who  has  complied  with  the  stipulations  of  his  contract,  the  owner 
will  be  liable  for  injuries  received/ 

Where  a  cover  to  an  opening  in  a  public  street  is  placed  in  the 
pavement  as  part  of  it,  for  persons  to  tread  upon,  in  front  of  the 
premises  of  a  person  who  uses  it  for  his  private  convenience,  he 
must  exercise  extraordinary  care  and  diligence,  not  only  in  making, 
but  in  keeping,  it  safe  and  secure.     A  traveler  is  not  bound  to 

Parks,  43  Iowa,  119;  Chicago  v.  Bobbins,  67  U.  S.  2  Black,  418,  17  L.  ed. 
298;  Bobbins  v.  Chicago,  71  U.  S.  4  Wall.  657,  18  L.  ed.  427;  Inhabitants 
of  Woburn  v.  Henshaw,  101  Mass.  193;  Lowell  v.  Short,  4  Cusb.  275; 
Lowell  V.  Spaulding,  4  Gush.  277;  Inhabitants  of  Milford  v.  Holbrook,  9 
Allen,  17;  Brooklyn  \.  Brooklyn  C.  B.  Co.  47  N.  Y.  475;  Troy  v.  Troy 
&  L.  B.  Co.  49  N.  Y.  657;  Gridley  v.  Bloomington,  68  111.  47;  Duranty. 
Palmer,  29  N.  J.  L.  544;  Portland  v.  BicJiardson,  54  Me.  46;  Lowell  y. 
Boston  &  L.  B.  Corp.  23  Pick.  24;  Sloughton  v.  Porter,  13  Allen,  191. 
But  an  ordinance  of  a  city  which  provides  that,  in  case  a  lot  owner  fail* 
or  refuses  to  make  repairs  of  sidewalk  as  required,  he  is  liable  to  a  fine, 
is  but  a  method  of  enforcing  the  performance  of  the  work  in  lieu  of  a 
tax.  It  imposes  no  liability  upon  the  owner  for  injuries  because  the 
work  is  not  done,  but  this  responsibility  rests  only  on  the  person  or  cor- 
poration having  the  authority  to  order  the  work  done.  Keokuk  v.  Inde- 
pendent List.  53  Iowa,  352;  Kirby  v.  Boylston  Market  Asso.  14  Gray, 
249;  Flynn  v.  Canton  Co.  40  Md.  312;  Heeney  v.  Sprague,  11  R.  I.  456; 
Eustace  v.  Jahns,  38  Cal.  3;  Jansen  v.  Atchison,  16  Kan.  358. 
^ Silvers  V.  Nerdlinger,  30  Ind.  53.  See  Bobbins  v.  Chicago,  71  U.S.  4  Wall.  657, 
679,  18  L.  ed.  427,. 432;  Chicago  v.  Bobbins,  67  U.  S.  2  Black,  418,  17  L. 
ed.  298;  Siorrs  v.  Iftica,  17  N.  Y.  104;  Herringtony.  Lansingburgh,  110- 
N.  Y.  145;  Edmundson  v.  Pittsburgh,  M.  &  T.  B.  Co.  Ill  Pa.  316; 
Cincinnati  v.  Stone,  5  Ohio  St.  38;  Oourdier  v.  Cormack,  2  E.  D.  Smith, 
254;  Palmer  v.  Lincoln,  5  Neb.  136;  St.  Paul  v.  Seilz,  3  Minn.  297? 
Detroit  v.  Corey,  9  Mich.  165;  Springfield  v.  Le  Claire,  49  111.  476. 


Chap.  VII.]  APERTURE    IN    SIDEWALK.  115 

exercise  critical  and  extreme  care  before  stepping  upon  it.  He 
has  a  right  to  assume  that,  not  only  the  public,  but  private  own- 
ers, have  performed  their  duty,  unless  there  is  something  reason- 
ably apparent  to  cause  some  apprehension  of  danger.^ 

But  to  render  a  lot  owner  liable  for  the  act  of  a  plumber  in  open- 
ing or  making  an  excavation  in  a  sidewalk,  it  must  appear  that  in 
doing  so  the  plumber  was  the  agent  or  servant  of  the  lot  owner^ 
and  that  he  was  in  his  em|)loy  and  subject  to  his  direction  and 
control." 

^  Wells  V.  Sibley  (Sup.  Ct.  April  11,  1890)  31  N.  Y.  S.  R.  40;  Buck  v.  Btddle- 
ford,  82  Me.  433;  Dickson  v.  HoUister,  123  Pa.  421;  Davenpoi-t  v.  Riick- 
inan,  37  N.  Y.  568;  Oordon  v.  Richmond,  83  Va.  436;  Howard  County  v. 
Lerjg,  110  Ind.  479;  Turner  v.  Newburgh,  109  N.  Y.  301;  McGuire  v. 
Spence,  91  N.  Y.  303. 

*Kelly  V.  Doody,  116  N.  Y.  575. 


CHAPTER  YIII. 

IMPERILING  SAFETY  OF  TRAVELERS. 

Sec.  14.  Negligence  Causing  Injury  to  Traveler. 

a.  Excavating  in  or  near  Higliivay. 

b.  Falling  of  Fence  or  Limbs  of  Trees. 

c.  Private  Seiuerage. 

d.  Liahility  for  Injury  to  Traveler  and    Care  Required  from 

Him. 

Section  l^.—JVegUgence  Causing  Injury  to  Traveler. 
a.  Excavating  in  or  near  Highway. 

"Wliere  an  excavation  is  made  near  to  but  not  substantially 
adjoining  a  public  highway,  at  common  law  no  action  lies  against 
the  owner  of  the  land  by  a  person  who  has  strayed  off  the  highway 
and  fallen  into  such  excavation.' 

That  a  private  injury  received  from  a  public  nuisance  is  the  sub- 
ject matter  of  an  action  for  damages,  is  a  doctrine  as  old  as  any  in 
the  common  law,  and  when  an  excavation  is  made  adjoining  a 
public  highway  so  that  a  person  walking  upon  it  might,  by  making 
a  false  step,  or  being  affected  with  sudden  giddiness,  or,  in  the 
case  of  a  horse  in  a  carriage-way,  might,  by  a  sudden  starting  of  the 
horse,  be  thrown  into  the  excavation,  it  is  reasonable  that  the  per- 
son making  such  excavation  should  be  liable  for  the  consequences; 
but  whe!i  the  excavation  is  made  at  some  distance  from  the  high- 
way and  the  person  falling  into  it  would  be  a  trespasser  upon  the 
defendant's  land  before  he  reached  it,  the  case  is  different.  It  is 
hard  to  say  where  the  liability  is  to  stop.  A  man  going  off  a  road 
on  a  dark  night  and  losing  his  way  may  wander  to  any  extent 
and  if  the  question  be  for  the  jury  no  one  could  tell  whether  the 
person  making  the  excavation  was  liable  for  the  consequences  of 
his  act  upon  his  own  land  or  not.  The  proper  and  true  test  of 
liability  is  whether  the  excavation  be  substantially  adjoining  the 
way ;  and  it  would  be  very  dangerous  if  it  were  otherwise  —  if, 

^HardcastU  v.  South  Torkslure  R.  &  R.  D.  Co.  4  Hurl.  &  N.  67. 


Chap.   VIII.]  EXCAVATING    IN    OR   NEAR    HIGHWAY.  117 

in  every  case,  it  was  left  as  a  fact  to  the  jury  wlictlier  the  excava- 
tion were  sutKciently  near  to  the  highway  to  he  dangerous.' 

The  early  case  of  Blyth  v.  TopJiam^  Cro.  Jac.  158,  where  it  is 
said  that  if  A,  being  seised  of  a  waste  adjoining  a  higliway,  digs 
a  pit  ill  the  waste,  within  3()  feet  of  the  way,  and  the  mare  of  B 
escapes  into  the  w^aste  and  falls  into  the  pit  and  is  killed,  yet  B 
shall  not  have  an  action  against  A,  because  the  making  of  the  pit 
in  the  waste  and  not  in  the  highway  was  no  wrong  to  B,  but  it 
was  by  default  of  B  himself  that  his  mare  escaped  into  the  waste, 
has  been  qualified  by  subsequent  cases,  notably  in  Barnes  v,  Ward^ 
9  C.  B.  392,  and  in  Iladley  v.  Taylor,  L.  K.  1  C.  P.  53,  which 
hold  that  if  the  excavation  is  adjacent  to  the  highway,  or  so  near 
thereto  as  to  make  the  use  of  the  highway  unsafe  or  dangerous, 
the  person  making  it  will  be  answerable  to  a  traveler  who,  while 
using  ordinary  care,  falls  into  it  and  is  injured,  although  the  exca- 
vation is  wholly  on  the  land  of  the  defendant.  In  the  last  case, 
Byles,  t/.,  after  referring  to  Barnes  v.  Ward,  remarked :  "  It  is 
extremely  difficult  to  draw  the  line  between  what  is  and  what  is 
not  such  a  proximity  to  the  highway  as  to  constitute  an  actionable 
nuisance." 

In  Young  Y.  Harvey,  16  Ind.  314,  the  horse  of  the  plaintiff, 
wandering  upon  the  streets  and  commons  of  a  suburb  of  a  city? 
fell  into  an  old  well  on  the  lot  of  the  defendant.  The  abandoned 
pit  was  near  the  line  of  a  street.  The  horse  was  lawfully  grazing 
on  the  common  and  fell  into  it.  In  determining  the  liability  of 
the  defendant  the  fact  that  the  pit  had  been  abandoned  was  con- 
sidered with  the  known  hazard  in  leaving  it  thus  exposed,  and  the 
duty  of  tlie  land  owner  to  guard  his  neighbors  from  danger  of 
such  exposure. 

In  Graves  v.  Thomas,  95  Ind.  361,  following  the  ruling  in 
Young  v.  Harvey,  supra,  it  was  held  that  the  fact  that  for  a  long 
period  the  public  using  the  sidewalk  had  been  permitted  to  use  a 
path  diverging  from  the  sidewalk  and  returning  to  it  over  a  va- 
cant lot  on  the  north  of  defendant's  lot,  and  over  the  defendant's 
lot,  the  path,  which  was  about  40  feet  long,  being  upon  higher 

^Hardcastle  v.  South  TorksUre  R.  &  R.  D.  Co.  4  Hurl.  &  N.  67.  Blnks  v. 
S'juth  Yorkshire  R.  &  R.  D.  Co.  3  Best  &  S.  244,  where  the  deceased  fell 
into  a  canal  22  feet  or  thereabouts  from  the  footway,  which  was  unpro- 
tected, and  was  drowned,  was  decided  upon  the  authority  of  the  Case  of 
Hardcastle. 


118  IMPOSED    DUTIES,  PERSONAL.  [Part    1. 

ground  than  another  path  sometimes  used,  which  ran  along  the 
sidewalk  proper,  rendered  the  owner  of  the  lot  liable  to  one  who, 
using  the  path  diverging  from  the  sidewalk,  fell  into  an  unguarded 
excavation  for  building,  which  had  been  made  by  the  owner.  Beck 
V.  Carter^  <o%  N.Y.  283,  23  Am.  Kep.  175,  is  cited  as  an  authority. 
In  that  case  the  defendant  had  for  a  long  time  allowed  a  portion 
ot  his  lot  adjoining  the  street  to  be  used  by  the  public  as  a  high- 
way. He  made  an  excavation  in  his  lot  about  ten  feet  from  the 
line  of  the  street.  The  plaintiff  while  passing  over  the  lot  in  the 
dark  fell  into  the  excavation  and  was  thereby  injured.  It  was 
held  that  the  defendant  was  liable,  and  the  court  of  appeals  ap- 
proved the  charge,  instructing  the  jury  that  it  made  no  difference 
whether  the  excavation  was  seven  or  nine  or  ten  feet  from  the 
established  boundaries  of  the  thoroughfare ;  that  if  it  was  so  situ- 
ated that  a  person  lawfully  using  the  thoroughfare  was  liable  to 
fall  into  it,  the  defendant  was  liable. 

In  Jones  v.  Nichols,  46  Ark.  207,  55  Am.  Rep.  575,  the  defend- 
ant left  open  an  unguarded  excavation  some  distance  from  the 
highway,  and  the  plaintiff's  cow,  which  had  been  turned  out  upon 
the  commons,  fell  into  the  excavation,  and  it  was  held  that  an 
action  would  lie  against  defendant  for  his  negligence. 

The  duty  and  liability  of  a  person  maintaining  an  open  excava- 
tion on  his  premises,  near  a  highway,  depends  upon  the  dangerous 
condition  in  reference  to  the  public  use  of  the  highway  in  which 
the  excavation  is  left  by  him,  rather  than  upon  the  exact  location 
and  distance  from  the  highway.'  In  substituting  for  the  test 
which  had  formerly  prevailed  in  Massachusetts,  as  expressed  in 
Howland  v.  Vincent,  10  Met.  371,  the  new  test,  stated  in  Mist- 
ier V.  0' Grady,  132  Mass.  139,  that  the  defendant  "had  no 
reason  to  suppose  that  any  person  would  attempt  to  go  where 
the  danger  was,  and  that  the  plaintiff  was  not  misled  by  any 
act  or  word  of  the  defendant, "  that  court  would  seem  to  rec- 
ognize the  duty  as  resting  upon  the  defendant,  and  this  recog- 
nition would  bring  the  Massachusetts  rule  in  accord  with  the 
Connecticut  rule,  as  announced  in  Norwich  v.  Breed,  30  Conn. 
547 ;    Bech    v.    Carter,    6  Hun,   601,  68  N".  Y.    281 ;     Balti- 

»  Crogan  v.  Schiele,  53  Conn.  186,  1  New  Eng.  Rep.  305;  Mistier  v.  O^Qrady, 
182  Mass.  139. 


Cliap.  VIII.]  EXCAVATING    IN    OR    NEAR    HIGHWAY.  11{> 

rnore  cfc  0.  R.  Co.  v.  Boteler,  38  Md.  568, — which  rule,  more 
fully  stated  in  Norioich  v.  Breed.,  makes  the  defendant's  liability 
■depend  upon  the  dangerous  condition  in  which  the  excavation 
was  left  by  the  defendant,  rather  than  upon  its  distance  from 
the  street, — the  dangerous  character,  rather  than  the  exact  loca- 
tion, of  the  excavation.  Whether  the  excavation  could,  with 
a  due  regard  to  the  rights  of  passengers  on  the  street,  be  left  un- 
guarded, or  could  not,  depends  upon  the  question  whether,  being 
unguarded,  it  endangers  the  travel  or  not;  if  it  does  not,  no  matter 
how  near  it  is  to  the  line  of  way ;  if  it  does,  no  matter  how  far 
it  is  removed.  This  rule  seems  to  be  a  reasonable  one  and  is 
not  thought  to  be  in  serious  conflict  with  the  principle  controlling 
the  cases  of  Hardcastle  v.  South  Yorkshire,  R.  &  R.  D.  Co.,  4 
Hurl.  &  N.  67,  and  Hounsell  v.  Smyth,  7  C.  B.  IST.  S.  729.  But 
it  has  lately  been  held  in  Massachusetts  that  occupants  of  a  build- 
ing abutting  on  a  street  are  not  liable  in  damages  for  injuries  to  a 
traveler  accidentally  precipitated  into  an  elevator  well  on  the 
premises  by  being  pushed  by  a  crowd,  and  tripped  by  a  lintel 
only  three  inches  raised  from  the  sidewalk  and  which  formed  the 
base  of  the  opening  of  the  well,  which  opening  was  designed  for 
communication  with  vehicles  on  the  street.'  It  does  not  appear 
in  this  case  that  the  opening  was  not  constructed  so  as  to  be  closed 
with  doors,  or  a  proper  barrier,  when  the  elevator  was  not  in  use. 
The  opening  was  but  five  or  six  feet  wide,  and  necessarily  nearly  at 
a  right  angle  with  the  line  of  the  sidewalk,  and  the  width  of  the 
wall  of  the  building  was  about  eighteen  inches.  It  was  impossible 
that  any  traveler  using  due  care  in  the  daytime  should  mistake 
the  opening  for  a  continuation  of^  the  sidewalk."  The  only 
danger  was  that  a  person  on  the  sidewalk  might  be  pushed  into 
the  opening  as  he  might  be  pushed  against  the  wall  of  the 
building,  or  against  or  through  a  window  or  against  a  door. 
The  elevator,  at  the  time  of  the  accident,  was  in  use  for 
carrying  up  the  iron  castings  which  were  being  unloaded  from 
the  wagon  which  had  been  bacced  up  against  the  curbstone 
of  the  sidewalk.  The  accident  that  happened  was  07ie  that  could 
not  reasonably  have  been  anticipated,  unless  the  horse  was  vicious, 

^Mclntire  v.  Roberts,  149  Mass.  450,  4  L.  R.  A.  519. 
"See  Day  v.  ML  Pleasant,  70  Iowa,  193. 


120  IMPOSED    DUTIES,  PERSONAL.  [Part    L 

or  there  was  negligence  in  managing  him ;  and  it  does  not  appear 
that  the  horse  belonged  to  the  defendants,  or  that  the  persons  who 
were  unloading  the  castings,  or  were  in  control  of  the  horse,  were 
servants  of  the  defendants.  It  is  said  of  the  liability  of  a  city,  in 
Alger  v.  Lowell,  3  Allen,  402,  405,  that  "  the  place  where  the- 
plaintiff  fell  was  indeed  outside  the  line  of  the  street,  but  the  de- 
fect in  the  street  which  occasioned  the  injury  was  the  want  of 
of  a  railing,  if  one  was  necessarj'  at  that  place  to  make  the  street 
safe  and  convenient  for  travelers  in  the  use  of  ordinary  care. 
And  the  city  would  have  an  undoubted  right  to  erect  such  a  rail- 
in  "•,  although  it  might  obstruct  the  entrance  to  the  passageway  of 
an  abutter ;  because  no  person  has  a  right  to  an  open  access  to  his 
land  adjoining  a  street  of  such  a  character  as  to  endanger  persons 
lawfully  using  the  street  for  purposes  of  travel." 

In  Franklin  v.  Fish,  13  Allen,  211,  it  is  said  that,  "  when 
highways  are  established,  they  are  located  by  the  public  authori- 
ties with  exactness,  and  the  easement  of  the  public,  which  consists 
of  the  right  to  make  them  safe  and  convenient  for  travelers,  and 
to  use  them  for  public  travel,  does  not  extend  beyond  the  limits 

of  the  location The  right  of  adjoining  proprietors  to 

erect  structures  upon  their  land  up  to  the  line  of  the  highway  is 
exercised  everywhere.'" 

If  this  elevator  opening  rendered  the  sidewalk  permanently 
dangerous  to  travelers,  it  was  recognized  as  undoubtedly  the  duty 
of  the  City  of  Boston  to  put  up  a  barrier,  and  if  the  defendant& 
removed  it  they  might  be  liable  to  travelers  who  were  injured  in 
consequence  of  the  removal  of  the  barrier ;  but,  it  was  said,  it 
has  not  yet  been  decided  in  Massachusetts  that  at  common  law 
abutters  are  liable  to  travelers  for  injuries  received  in  consequence 
of  excavations  made  in  their  land  outside  the  limits  of  a  highway ;. 
and  Rowland  v.  Vincent,  10  Met.  371,  was  thought  to  be  a  strong- 
er case  for  the  plaintiff  than  Mclntire  v.  Roberts,  149  Mass.  450, 
4  L.  K.  A.  519.  On  appeal  in  Mclntire  v.  Roberts  it  was  argued 
that  Rowland  v.  Vincent  is  opposed  to  the  weight  of  authority  else- 
where, and  that  a  hole  outside  the  limits  of  a  highway,  yet  so 
near  to  it  as  to  make  the  highway  unsafe  for  travelers,  constitutes 
a  public  nuisance,  and  that,  if  a  person  creates  a  public  nuisance^ 
1  See  Mayo  v.  Spi'inri field,  136  Mass.  10. 


Chap.  YIII.]  EXCAVATING    IN    OK   NEAR    HIGHWAY.  121 

he  is  liable  to  individuals  for  aiiy  special  damages  suffered  there- 
from.' 

But  the  court  said  that  the  occupier  of  a  building,  who  negli- 
gently permits  a  private  way  leading  to  it,  which  is  under  his 
control,  to  be  in  an  unsafe  condition,  by  reason  of  an  excavation 
or  embankment  so  near  to  it  as  to  make  traveling  on  it  dangerous, 
is  liable  for  injuries  received  by  any  person  who  is  lawfully  using 
the  way  with  due  care  f  but  abutters  on  a  public  way  have  not 
control  of  the  way,  nor  do  travelers  use  a  public  way  by  invita- 
tion of  the  abutters. 

In  Massachusetts  the  obligation  of  a  city  or  town  to  put  up 
guards  against  pitfalls  which  are  so  near  to  a  highway  as  to  make 
it  unsafe  for  travelers  is  similar  to  the  obligation  which  it  seems 
is  imposed  upon  abutters  by  the  English  law.  It  has  never  been 
decided  there  that  excavations  made  by  the  owner  of  land  outside 
the  limits  of  a  highway,  but  so  near  as  to  make  it  unsafe  for 
travelers,  constitute  a  public  nuisance,  for  creating  or  maintaining 
wdiich  the  land  owner  may  be  iDiinished,  or  that  in  assessing  dam- 
ages for  land  taken  for  a  highway  any  allowance  is  made  to  the 
land  owner  for  the  loss  of  any  right  to  use  the  land  not  taken,  in 
the  same  manner  as  if  a  highway  had  not  been  laid  out.  But  if 
it  be  assumed  that,  when  a  building  abuts  upon  a  sti-eet,  it  is  for 
the  authorities  of  the  city  or  town  to  determine  whether  the  en- 
trances into  the  building  from  the  street  are  so  constructed  that 
they  may  be  permitted  to  remain,  and  if  it  be  also  assumed  that 
when  entrances  are  permitted,  which  are  constructed  so  as  to  be 
closed,  when  not  in  use,  by  doors  or  some  other  barrier,  the  occu- 
pier of  the  building  is  liable  in  damages  to  travelei-s  upon  the 
street,  if  the  doors  are  negligently  left  open  or  the  barrier  left 
down,  whereb}^  the  street  becomes  unsafe  and  the  travelers  are 
injured,  still  the  facts  stated,  it  is  said,  do  not  show,  or  tend  to 
show,  negligence  on  the  part  of  the  defendants. 

Tlie  question  whether  an  open  excavation  on  one's  own  land  is 
so  located  as  to  make  the  use  of  a  highway  dangerous  is  one  of 

'See  Barnes  v.  Ward,  9  C.  B.  392;  Fisher  v.  Prowse.  2  Best  &  S?  770;  Hadley 
V.  Taylor,  L.  R.  1  C.  P.  53;  Beck  v.  Carter,  68  N.  Y.  283;  Bond  v.  Smith, 
44  Hun,  219;  Murray  v.  McShane,  52  Md.  217;  State  v.  Society  for  Estab- 
lishing Useful  Manufactures,  42  N,  J.  L.  504;  Haughey  v.  Hart,  6a 
Iowa,  96. 

*Mellen  v.  Morrill,  126  Mass.  545;  Oliver  v.  Worcester,  102  Mass.  489, 


122  IMPOSED    DUTIES,  PEKSONAL.  [Part  I. 

fact,  not  of  law ;'  and  the  treacherous  character  of  an  excavation 
near  a  highway,  rather  than  its  exact  location,  will  determine  the 
liability  of  the  land  owner,  and  the  question  of  negligence  is  for 
the  jury/ 

That  defendant  negligently  removed  a  fence,  leaving  a  private 
vault  unguarded  and  open,  within  ten  feet  from  the  sidewalk  of 
a  public  traveled  street,  in  consequence  of  which  plaintiff's  child, 
■three  years  and  ten  mouths  old,  lost  its  life  by  falling  into  the 
vault,  shows  a  liabiHty.* 

And  it  was  held  in  Bond  v.  Smith,  44  Hun,  219,  that  a  person 
injured  by  falling  into  an  open  unguarded  area  adjoining  an  alley, 
wliile  passing  along  the  alley  in  discharge  of  his  duty,  is  not 
-guilty  of  contributory  negligence  because  of  his  knowledge  of  the 
excavation.  But  on  appeal  it  was  held  that  the  owner  of  prem- 
ises on  which  are  buildings  flush  witli  an  alley  is  not  liable  for  the 
death  of  a  watchman,  in  the  employ  of  a  private  detective  agency, 
who  fell  into  an  area  between  the  buildings,  which  was  separated 
from  the  alley  by  a  stone  coping  seven  inches  high  and  two  feet 
wide,  and  whose  locality  could  always  be  determined  by  a  watch- 
man, where  the  circumstances  of  the  accident,  occurring  at  night, 
are  not  disclosed,  the  watchman  having  been  familiar  witli  the 
premises/ 

Where  a  police  officer  in  pursuit  of  a  disorderly  person  fell 
•over  the  unprotected  edge  of  a  lot,  which  had  been  left  as  the 
result  of  a  city's  act  in  grading  down  the  street,  the  owner  of  the 
lot  is  not  liable  to  the  person  who  has  sustained  injury  by  his 
•death/ 

b.  Falling  of  Fence  or  Limhs  of  Trees. 

Lot  fronts  in  a  city  need  not  be  fenced  unless  there  be  some 
municipal  regulation  requiring  it ;'  but  if  the  lot  holder  erect  a 
fence  it  must  be  of  such  a  character  as  will  not  be  likely  to  injure 

^^Crogan  v.  ScMele,  53  Conn.  186,  1  New  Eng.  Rep.  305. 

^Malloy  V.  Hlbernia  Savings   &  Loan  Society  (Cal.  April  32,  1889)  21  Pac. 

Rep.  525. 
*Bond  V.  Smith,  113  N.  Y.  378. 
s  Woods  V.  Lloyd  (Pa.  Nov.  5,  1888)  16  All.  Rep.  43. 
^Detroit  V.  Beecher,  75  Mich.  454. 


Chap.  VIIL]  PRIVATE    SEWERAGE.  123 

persons  upon  the  street  or  on  their  own  property,  nor  dangerous 
to  animals  lawfully  at  large.' 

Where  a  person  is  injured  by  the  falling  of  a  fence  while  he  is 
upon  a  sidewalk,  and  he  had  no  previous  knowledge  of  its  insecu- 
rity, there  is  no  rule  of  law  requiring  it  to  be  shown  that  the 
owner  of  the  fence  had  previous  knowledge  of  its  defective  con- 
dition before  he  can  be  held  liable  for  the  injury  received.'' 

"Where  the?  charter  accepted  by  the  city  gave  the  common 
■council  power  to  make  by-laws  for  the  regulation  and  protection 
of  trees  in  the  public  squares  and  streets,  and  they  passed  a  by- 
law imposing  a  fine  on  any  person  who  should  cut  or  otherwise  in- 
jure any  shade  tree  in  any  public  square  or  street,  witliout  the 
•certain  special  license,  and  a  limb  which  the  city  had  negligently 
allowed  to  remain  on  a  tree  in  a  public  square  fell  upon  and  in- 
jured plaintiff  while  he  was  passing  under  it,  the  city  was  liable.* 

Where  a  municipality  has  for  a  long  time  had  authority  to  plant 
And  preserve  shade  trees,  proof  that  an  individual  owns  and  occu- 
pies the  lot  in  front  of  which  a  tree  stands  is  not  sufficient  to 
charge  him  with  the  duty  of  trimming  it  or  with  liability  for  in- 
jury received  from  a  falling  branch.  The  owner  of  the  lot  is  not 
■charged  with  the  duty  of  placing  trees  in  streets  in  the  absence  of 
statute  or  regulation."  But  where  a  man  plants  a  poisonous  tree 
upon  his  premises  he  must  see  that  it  does  not  project  so  as  to  ex- 
pose animals  upon  neighboring  grounds  to  injury/ 

c.  Private  Sewerage. 

An  abutter  on  a  passageway  through  which  has  run  for  more 
than  twenty  years  a  common  sewer  used  by  such  abutters  and  built 
iunder  an  agreement  that  they  should  pay  for  making  so  much  of  it 

^Loveland  v.  Gardner,  79  Cal.  317,  4  L.  R.  A.  395;  Siftk  v.  Cnimp,  112  Ind. 

504,  12  West.  Rep.  134.     See  also  Powers  v.  Barlow,  53  Mich.  507;  Fink 

V.   Missouri  Furnace  Go.  10  Mo.  App.  69;  Atlanta  &  W.  R.  R   Co  -^ 

Hudson,  62  Ga.  680. 
'^Hussey  v.  Eyan,  64  Md.  426,  2  Cent.  Rep.  626.     See  also  Norling  v.  Alice 

(Brooklyn  City  Ct.  June  3,  1890)  31  N.  Y.  S.  R.  412. 
^ Jones  V.  NeiD  Raven,  34  Conn.  1. 
*WeUer  v.   McCormick,  47  N.   J.   L.  397,  1  Cent.  Rep.  462.     See  Fuclis  v 

Schmidt,  8  Daly,  317. 
^Crowhurst  v.  Amersham  Burial  Board,  L.  R.  4  Excb.  Div.  5. 


124  IMPOSED    DUTIES,    PERSONAL.  [Part    I. 

as  passed  by  their  respective  premises,  and  so  built  that  the  tide  which 
ebbed  and  flowed  in  it  and  the  other  water  which  passed  through 
it  was  prevented  by  its  wooden  walls  and  the  earth  packed  around 
them  from  entering  the  cellars,  who  builds  a  drain  from  his  prem- 
ises into  the  sewer  so  carelessly  that  by  loosening  the  earth  he 
causes  the  water  to  escape  from  the  sewer  at  the  time  of  high  tide 
into  the  cellar  of  another  abutter,  is  liable  for  the  damages  so  done, 
although  in  its  course  into  the  neighbor's  cellar  the  water  passes 
through  his  own,  and  prior  to  twenty  years  both  were  subject  to 
the  natural  flow  and  ebb  of  the  tide,  and  would  have  continued  to 
be  so  subject  but  for  the  artificial  filling  up  of  vaults,  between  the 
passageway  and  the  edge  of  the  harbor,  and  although  all  his  acta 
in  building  the  drain  were  done  upon  his  own  laud.'  So  in  the 
construction  of  cellar  drains  and  water  pipes  care  must  be  used  ta 
avoid  injury  to  or  interruption  of  the  use  of  ^the  street  without 
authority  or  needlessly  to  prolong  such  use  or  cause  injury," 

d.  Liability  for  Injury  to  Traveler  and  Care  Re- 
quired  from  Him. 

It  may  be  said  generally  that,  where  the  owner  of  premises 
fronting  on  a  street  obstructs  the  public  travel  on  the  street  or 
sidewalk,  he  is  responsible  for  any  injuries  resulting  therefrom  to- 
a  traveler  using  ordinary  care,  unless  he  shows  that  such  obstruc- 
tion was  temporary  only  or  reasonably  necessary,  and  the  questions 
of  reasonable  necessity  and  contributory  negligence  are  ordinarily 
for  the  jury.^ 

Where  a  public  road  is  obstructed  or  rendered  impassable,  the 
traveler  is  not  guilty  of  trespass  in  seeking  a  passage  over  adjoin- 
ing lands,  doing  no  unnecessary  injury.* 

^Hawkesworth  v.  Thompson,  98  Mass.  77.  See  also  M7ns  v.  Tr-oy,  59  N.  Y. 
500;  Eu7nphries  v.  Cousins,  L.  R.A.  2  C.  P.  Div.  239;  Bell  v,  Twentyman, 

1  Q.  B.  766. 

^Clark  Y.  Fry,  8  Ohio  St.  358;  Smith  v.  Simmons,  103  Pa.  32;  Susquehanna 
Depotv.  Simmons,  112  Pa.  384.     See  also  Tenant  v.  Oolding,  1  Salk.  21, 360. 

^Jochem  V.  Robinson,  66  Wis.  638;  Oosport  v,  Evans,  112  Ind.  133;  Erie  v. 
Magill,  101  Pa.  616. 

^Campbell  v.  Race,  7  Gush.  408;  Morey  v.  Fitzgerald,  56  Vt.  487;  Henn'sCase, 
Sir  W.  Jones,  296;  3  Salk.  182,  title  Highways;  Absor  v.  French,  2 
Shower,  28;  Young  \. ,  1  Ld.  Raym.  725;  Taylor  v.   Whitehead, 

2  Doug.  745;  Bullardv.  Harrison,  4  Maule  &  S.  387;  Holmes  v.  Seely,  lt> 
Wend.  507;  Williams  v.  Safford,  7  Barb.  309;  Newkirk  v.  Sabler,  9  Barb. 
652. 


Chap.  YIII.]  LIABILITY    FOR    INJURY    TO    TRAVELER.  125 

A  person  must  be  in  the  liighway  for  some  lawful  purpose  in 
order  to  be  entitled  to  recover  for  an  injury  received  through 
some  defect  therein.' 

But  in  order  to  be  a  traveler,  it  is  not  necessary  that  one  should 
be  constantly  moving,  if  he  is  a  pedestrian,  or  that  the  vehicle  he 
drives,  or  that  in  which  he  is  conveying  goods,  if  he  is  using  one, 
shall  be  continuously  in  motion.  It  would  certainly  be  impossible 
to  use  the  highways  conveniently  for  the  ordinary  purposes  of 
business  or  social  life,  with  teams  or  lighter  carriages,  if  occasional 
stops  were  not  permitted  to  enable  those  using  them  to  load  and 
unload  teams,  to  receive  and  deliver  goods,  to  enter  shops  and 
stores,  and  to  make  brief  calls  of  business,  or  even  of  a  social  char- 
acter. During  these  stops,  if  reasonable  in  duration,  one  should 
not  lose  his  rights  as  a  traveler,  and  the  protection  thus  afforded  to 
his  person  or  property." 

In  Smethur^t  v.  Barton  Square  Independent  Cong.  Churchy 
148  Mass.  261,  2  L.  E.  A.  695,  the  plaintiff  at  the  time  of  the  ac- 
cident was  engaged  in  unloading,  from  his  team,  goods  which  were 
to  be  deposited  in  tlie  basement  of  defendant's  building.  The  exact 
]30sition  of  plaintiff's  team  m^  as  in  dispute.  The  presiding  judge  de- 
■clined  to  instruct  the  jury  that  plaintiff  was  not  a  traveler,  and  in- 
structed the  jury  that  the  plaintiff  had  the  right  to  use  the  way  for  the 
transportation  of  goods  in  a  proper  manner,  not  unreasonably  ob- 
structing or  interfering  with  others,  adding  :  "  He  has  a  right  to  stop 
in  the  road  for  tlie  purpose  of  getting  out  or  getting  in,  or  of  unload- 
ing a  team  in  a  reasonable  manner  ;  and  what  is  a  reasonable  manner 
is  a  question  for  the  jury  to  pass  upon,  under  all  the  circumstances 
of  the  case."  Under  this  instruction  the  jury  must  have  found 
that  he  was  unloading  his  team  in  a  reasonable  and  jDroper  man- 
ner when  the  accident  occurred.  A  traveler  lawfully  using  the 
way  has  the  same  rights  to  enjoy  such  use  undisturbed  as  if  he 
were  the  owner  in  fee  simple,^     One  stepping  upon  the  street  to 

^Syle«  V.  PawUt,  43  Vt.  446;  Blodgett  v.  Bos^ton,  8  Allen,  237;  Tighe-j.  Lowell, 

119  Mass.  473;  Lyons  y.  BrooMine,  119  Mass.  491;  Wheeler  v.  WestpoH,  30 

Wis.  393. 
^0' Linda  v.  Lothrop,  21  Pick.  292;  Judd  v.  Farfio,  107  Mass.  264;  Murray  v. 

McShane,  52  Md.  217,  36  Am.  Rep.  367;  Duffy  v.  Dubuque,  63  Iowa,  171, 

50  Am.  Rep.  743. 
^Shipley  v.  Fifty  Asso.  101  Mass.  251. 


126  IMPOSED    DUTIES,  PERSONAL.  [Part   I. 

observe  a  procession  or  band  pass,  is  still  a  traveler,  lawfully  using 
the  sidewalk.* 

Two  things  must  concur  to  support  the  action  for  damages  for 
injury  from  street  obstruction :  an  obstruction  in  the  road  by  the 
fault  of  the  defendant,  and  no  want  of  ordinary  care  to  avoid  it 
on  the  part  of  the  plaintiff.  This  rule,  stated  in  different  language, 
has  been  consistently  and  uniformly  declared  and  adhered  to  by 
appellate  courts  in  every  common-law  jurisdiction." 

One  traveler  has  no  more  legal  ground  of  complaint  on  account 
of  an  obstruction  in  the  public  highway  than  others,  unless  he  be 
entitled  to  use  the  highway  at  the  point  of  such  obstruction  for  a 
different  purpose  than  other  people,  or  has  suffered  some  special 
injury  therefrom  ;  and  the  fact  that  he  may  be  more  frequently 
inconvenienced  does  not  give  a  cause  of  action.^ 

One  who  suffers  no  pecuniary  damage  from  an  obstruction  in  a 
highway,  but  is  merely  put  to  the  inconvenience,  common  to  all 
who  use  the  way,  of  removing  the  obstruction  or  taking  a  more 
circuitous  route,  cannot  maintain  an  action.*  But  if  a  public  nui- 
sance, such  as  an  unlawful  obstruction  to  a  common  passage,  causes 
peculiar  damage  to  an  individual,  he  may  maintain  an  action  there- 
for, and  the  complaint  need  not  negative  the  lawfulness  of  the  ob- 
struction, or  its  continuance,  or  that  it  was  unavoidable — these 
being  matters  of  defense  to  be  set  up  by  answer.* 

In  an  action  for  personal  injuries  received  because  of  defective 
streets  or  sidewalks,  where  contributory  negligence  is  alleged  as  a 
defense,  it  is  only  necessary  for  the  plaintiff  to  show  the  exercise 
of  ordinary  care  and  diligence  in  passing  over  such  street  or  side- 
walk ;  and  what  constitutes  ordinary  care  must  be  determined  by 

'  Varney  v.  Manchester,  58  N.  H.  430. 

^Bruker  v.  Covington,  69  Ind.  33;  Mt.  Vernon  y.  DusoucTiett,  2Ind.  586;  Riest 

V.  Goshen,  42  Ind.  339;  Jonesboro  &  F.  Turnp.  Go.  v.  Baldwin,  57  lad.  86; 

Gosportv.  Evans,  112  lud.  133,  11  West.  Rep.  118. 
^GHhert  v.  Greeley,  8.  L.  &  P.  R.  Go.  13  Colo.  501. 
*Winterbottom  v.  Derby,  L.  R.  2  Exch.  316;  Wiggins  v.  Boddington,  3  Car.  & 

P.  544;  Fineaux  v.  Hovenden,  Cro.  Eliz.  664;  Hubert  v.  Groves,  1  Esp.  148; 

Carpenters.  Mann,  17  Wis.    155;  Greene  v.  Nunnemaeher,  36  Wis.  50; 

Houck  V.  Wachter,  34  Md.  265;  Shipley  v.  Gaples,  17  Md.  179;  Garitee  v. 

Baltimore,  53  Md.  422,  437;  Farrelly  v.  Cincinnati,  2  Disney  (Ohio)  516; 

McCowan  v.  Whitesides,  31  Ind.  235;  Shed  v.  Hawthorne,  3  Neb.  179;  Barr 

V.  Stevens,  1  Bibb,  293.     See  Pittsburgh  v.  Scott,  1  Pa.  309. 
^Enos  V.  Hamilton,  27  Wis.  256;  Dudley  v.  Kennedy,  63  Me.  465. 


Chap.  VIII.]  LIABILITY    FOK    INJURY    TO    TKAVELER.  12T 

the  facts  surrounding  each  case.'  The  fact  tliat  a  person  walked 
during  the  daytime  into  an  excavation  extending  across  the  side- 
walk, there  being  no  dirt  or  other  object  to  indicate  such  excava- 
tion, is  not  of  itself  such  conclusive  proof  of  contributory  negli- 
gence as  will  prevent  the  submission  to  the  jury  of  his  action  for 
damages.' 

In  formulating  a  rule  as  to  the  care  to  be  exercised  in  driving, 
it  should  state  that  such  care  is  required  as  persons  of  ordinaiy 
intelligence  and  prudence  would  exercise  under  like  circumstances,, 
and  not  that  the  care  must  be  such  as  an  ordinary  business  man 
or  an  ordinary  man  would  use.''  It  is  not  negligence  jper  se  to- 
drive  a  team  at  a  lively  rate  through  the  streets  of  a  city."  That 
plaintiffs  were  driving  a  blind  horse  on  a  dark  night  is  woX  jper  se 
contributory  negligence  which  will  prevent  a  recovery  for  an  in- 
jur}' received  from  a  defective  highway.* 

^Kinsley  v.  Morse,  40  Kan.  588. 

'CanUoell  v.  Appleion,  71  Wis.  4G3. 

^Austin  V.  Eitz,  72  Tex.  391. 

^Crocker  v.  Knickerbocker  Ice  Co.  92  N.  Y.  652;  Carter  v.  Chambers,  79  Ala. 
223;  Brennan  v.  Friendship,  67  Wis.  223.  Evidence  that  the  rate  of 
si>eed  exceeds  that  permitted  by  a  city  ordinance  is  admissible  on  the 
question  of  negligence.  Jetter  v.  New  York  &  H.  R.  Co.  2  Abb.  App 
Dec.  458;  Eanlon  v.  South  Boston  B.  Co.  129  Mass.  310;  Hall  v.  Ripley, 
•119  Mass.  135;  Wright  v.  Maiden  R.  Co.  4  Allen,  283.  The  plaintiff 
cannot  recover  for  an  injury  he  claims  to  have  been  occasioned  by  the 
defective  and  dangerous  condition  of  a  turnpike  road,  where  he  con- 
tributed to  cause  his  misfortune  by  driving  a  horse  not  ordinarily  gentle, 
or  by  driving  with  one  hand  disabled  by  previous  ailments,  so  as  to  inter- 
fere with  the  proper  management  of  his  team,  or  from  his  want  of  that 
degree  of  attention,  circumspection,  skill  and  care  to  avoid  danger  which 
an  ordinarily  prudent  and  careful  driver  habitually  employs,  or  might 
reasonably  be  expected  to  employ,  in  similar  circumstances.  Stri^igerv 
Frost,  116'lnd.  477,  2  L.  E.  A.  614;  Baltimore  &  L.  Tump.  Co.  v.  Cass- 
tcell,  66  Md.  419,  6  Cent.  Rep.  462.  A  traveler  must  exercise  reasonable 
care  in  the  use  of  a  highway  and  in  the  selection  of  his  horse,  harness 
and  carriage,  and  if  he  exercise  such  care,  the  fact  that  the  vices  of  the 
horse  or  defects  in  the  harness  or  carriage  may  have  concurred  with  the 
unsafe  condition  of  the  highway  in  causing  the  injury  will  not  defeat 
his  action.  Clark  v.  Barrington,  41  N.  H.  44;  Tucker  v.  Uenniker,  Id. 
817;  Noyes  v.  Boscawen,  64  N.  H.  361,  5  New  Eng.  Rep.  70.  It  is  a 
question  for  the  jury  whether  driving  at  night  without  lights,  when  it 
is  too  dark  to  distinguish  the  highway,  constitutes  contributory  negli- 
gence. Daniels  v.  Lebanon,  58  N.  H.  284.  The  driver  of  a  fire-engine 
has  a  right  to  cross  the  neutral  ground  in  the  street  of  a  city  at  points 
between  crossings  for  the  purpose  of  arriving  speedily  at  a  fire.  Wilson 
V.  Great  SoutJiern  Teleph.  &  Telcg.  Co.  41  La.  Ann.  1041.  But  see  the 
questionable  ruling  in  Morse  v.  Sweenie,  15  111.  App.  486,  applying  a  city 
ordinance  limiting  the  speed  in  driving  upon  the  street  to  fire-engines. 

'^Brackenridge  v.  Fitchburg,  145  Mass.  160,  5  New  Ene:.  Rep.  171;  Smith  v. 
Wildes,  143  Mass.  556,  3  New  Eng.  Rep.  744;  Wright  v.  Templeton,  13^ 
Mass.  49;  Daniels  v.  Lebanon,  58  N.  H.  284. 


128  IMPOSED   DUTIES.  PERSONAL.  [Part   I. 

The  fact  tliat  a  plaintifE  has  knowledge  of  a  danger  that  he  will 
encounter  if  he  pursues  his  way  does  not  always  necessarily  pre- 
clude a  recovery,  but  it  is  in  every  case  an  important  factor.'  It 
will  not  always  avail  the  plaintiff  that  he  was  not  fully  aware  of 
his  danger ;  for  a  plaintiff  is  bound  to  know  where  the  circum- 
stances are  known  to  him,  or  the  hazard  is  apparent  to  a  reasonably 
prudent  man.*  A  person  who,  knowing  that  there  is  no  street 
crossing  at  a  certain  place,  connecting  with  a  sidewalk  that  has 
been  erected,  and  who  walks  off  the  end  of  the  sidewalk  without 
looking,  is  guilty  of  contributoiy  negligence  which  will  prevent  a 
recovery  for  injuries  thereby  sustained.'  A  person  who  uses 
a  sidewalk  or  other  highway  which  his  observation,  prudently  ex- 
ercised, would  inform  him  was  dangerous,  takes  the  risk  of  such 
injuries  as  may  result  to  him  by  open  and  apparent  defects  such 
as  his  observation  ought  to  have  detected  and  avoided  ;  but  if  the 
injury  does  not  result  from  these,  but  from  another  and  latent  de- 
fect which  no  reasonable  degree  of  prudence  or  care  could  detect, 
he  will  not  be  considered  as  taking  the  risk  of  injury  from  this 
latent  defect."  Still  prior  knowledge  of  a  defect  in  a  street,  by 
•one  who  is  injured,  is  not  necessarily  proof  of  contributory  negli- 
gence.^ Because  one  has  knowledge  that  a  highway  or  sidewalk 
is  out  of  repair,  or  even  dangerous,  he  is  not  therefore  bound  to 
forego  travel  upon  such  highway  or  sidewalk."  That  the  plain- 
tiff was  acquainted  with  the  condition  of  the  road  will  not  defeat 

^Dundafi  v.  Lansing,  75  Mich.  499,  5  L.  E.  A.  143;  Lowell  v.  Watertown  Twp. 
58  Mich.  568;  Toledo,  W.  &  W.  R.  Co.  v.  Brannagan,  75  Ind.  490,  and 
cases  cited;  Murphy  v.  Indianapolis,  83  Ind.  76;  Henry  County  Tump.  Go. 
V.  Jackson,  86  Ind.  Ill;  Porter  County  v.  Dombke,  94  Ind.  72;  Indianapo- 
lis V.  Cook,  99  Ind.  10;  Aurora  v.  Bitner,  100  Ind.  396;  Byerly  v.  Ana- 
mosa,  79  Iowa,  204;  Ross  v.  Davenport,  66  Iowa,  548;  Walker  v.  Decatur 
County,  67  Iowa,  307;  Hunger  v.  Marshalltoicn,  59  Iowa,  763;  Rice  v. 
Des  Moines,  40  Iowa,  638;  Hanlon  v.  Keokuk,  7  Iowa.  488. 

^Pennsylvania  R.  Co.  v.  JIe?iderson,  43  Pa.  449;  Southern  R.  Co.  v.  Ken- 
drick,  40  Miss.  374;  Lake  Shore  &  M.  S.  R.  Go.  v.  Pinchin,  112  Ind,  593. 

^Plymouth  v.  Milner,  117  Ind.  334. 

*Moore  v.  Huntington,  31  W.  Va.  843.  It  is  not  contributory  negligence 
not  to  look  out  for  danger  where  there  is  no  reason  to  apprehend  any. 
Etigel  V.  Smith  (Mich.  July  3.  1890)  46  N.  W.  Rep.  21. 

^McKeigne  v.  Janesville,  68  Wis.  50. 

^Huntington  v.  Breen,  77  Ind.  30;  Wilson  v.  Trafalgar  &  B.  G.  Or.  Road 
Co.  83  Ind.  326,  93  Ind.  287;  JSfave  v.  Flack,  90  Ind.  212;  South  Bend  v. 
Hardy,  98  Ind.  586;  Albion  v.  Hetrick,  90  Ind.  546;  Turner  v.  Buchanan, 
82  Ind.  147;  Gosport  v.  Evans,  112  Ind.  133,  11  West.  Rep.  118. 


<Jhap.  yilL]  LIABILITY    FOR    INJURY    TO    TRAVKLEK.  129 

his  right  to  recover,  if  his  walking  on  the  dangerous  side  was  in 
■consequence  of  darkness,  and  not  negligence  on  Iiis  part.'  The 
doctrine  to  be  extracted  fi-om  the  cases  is  that,  altliough  a  side- 
walk or  highway  may  be  in  an  apparently  defective  or  dangerous 
condition,  yet  a  person,  with  knowledge  of  the  defect  or  danger, 
is  not,  on  that  account,  obliged  to  abandon  travel  upon  the  ]ii<>-h- 
way,  if,  by  the  exercise  of  care  proportioned  to  the  known  danger, 
he  may  reasonably  expect  to  shun  or  avoid  the  defect,' 
■  Where  a  sidewalk  had  been  constantly  and  generally  used  and, 
though  unsafe,  very  few  had  received  injuries  therefrom,  and 
plaintiff  was  familiar  with  it  and  had  been  over  it  frequently  and 
knew  it  to  be  a  place  of  danger,  but  received  the  injury  there  on 
a  dark  night,  he  was  not  necessarily  guilty  of  negligence  in  tak- 
ing the  unsafe  walk.' 

A  woman  is  not  guilty  of  contributory  negligence  in  passing 
over  a  sidewalk  which  she  knew  was  not  in  good  repair,  where 
she  did  not  regard  it  as  dangerous,  but  passed  over  it  frequently, 
as  others  did  daily,  without  mishap,  where  she  walks  carefully, 
and  it  is  the  only  walk  leading  to  the  place  of  her  destination." 

Where  there  is  danger,  and  the  peril  is  known,  whoever  en- 
counters it  voluntarily  and  unnecessarily  cannot  be  regarded  as 
exercising  ordinary  prudence,  and  therefore  does  so  at  his  own 
risk.'  One  who  knows  of  a  dangerous  obstruction  in  a  street  or 
sidewalk,  and  yet  attempts  to  pass  it  when,  on  account  of  dark- 
ness or  other  hindering  causes,  he  cannot  see  so  as  to  avoid  it, 
takes  the  risk  upon  himself.*  For  a  much  greater  reason  does 
he  take  the  risk  upon  himself,  if,  seeing  an  obstruction  and  know- 
ing its  dangerous  character,  he  deliberately  goes  into  or  upon  it 
when  he  is  under  no  compulsion  to  go,  or  might  avoid  it  by  going 
.around,'' 

'Mill  Creek  Twp.  v.  Perry  (Pa.  Nov.  7,  1887)  10  Cent.  Rep.  299. 

'^Horton  v.  Ipswich,  12  Cush.  488. 

^AUoona  v.  Lotz,  114  Pa.  238,  6  Cent.  Rep.  135. 

*Troxel  v.  Vinton,  77  Iowa,  99. 

=  ^Corlett  V.  Leavenworth,  27  Kan.  673;  Sclinefer   v.  Sandusky,  33  Ohio  St. 

246;  Gosport  v.  Evans,  112  Ind.  133,  11  West.  Rep.  118. 
'Thompson  v.  Cincinnati,  L.  &  C.  B.  Co.  54  Ind.  197;   Louisville  &  N.  JR.  Co. 

V.  Schmidt,  81  Ind.  264;  King  v.  Thompson,  87  Pa.  365;   Toledo,  W.  .f:  IF. 

li.  Co.  V.  Brannagnn,  75  Ind.  490;  Erie  v.  Mac/ill,  101  Pa.  616;  WiUon  v. 

Charlestown,  8  Allen,  137;  Durkin  v,   Troy,  61  I3arb.  437;   Centralia  v. 

Krouse,  64  111.  19. 

9 


130  IMPOSED  DUTIES,  PEKSoisrAL.  [Part  I. 

One  who  intentionally  and  unnecessarily  drives  his  wagon  on  a 
sidewalk  in  violation  of  an  ordinance  is  gnilty  of  contributory  negli- 
gence which  will  prevent  recovery  for  injuries  received,  caused 
by  a  post  which  was  so  near  tlie  way  as  to  constitute  a  defect.' 

Where  the  evidence  is  conflicting  as  to  whether  a  sidewalk  as 
constructed  was  sufficiently  safe  for  the  amount  of  travel  passing 
over  it,  the  question  is  one  of  fact  for  the  determination  of  the 
jury,"  Whether  the  covering  to  an  opening  in  the  sidewalk  was  made 
and  adjusted  in  a  reasonably  secure  and  safe  way  is  for  the  jury.* 
It  is  improper  to  take  the  determination  of  the  question  of 
negligence  from  the  jury,  where  the  plaintiff,  occupying  apart- 
ments accessible  only  through  a  door  opening  on  the  sidewalk,  the 
building  being  the  property  of  the  defendant,  stepped  upon  the 
cover  of  a  coal  hole  on  the  sidewalk,  which  gave  way,  precipitat- 
ing her  into  the  hole  and  injuring  her." 

Whether  a  passer-by  acted  in  the  exercise  of  proper  care  to  pass- 
over  an  obstruction  on  the  sidewalk,  caused  by  earth  deposited 
there  by  an  adjoining  owner,  or  was  bound  to  go  around  such  ob- 
struction into  another  street,  was  a  question  of  fact,  and  it  cannot 
be  said  that  the  attempt  to  pass  over  the  obstruction,  with  knowl- 
edge of  its  existence,  was,  as  matter  of  law,  culpable  negligence.^ 
It  is  not  negligence ^e/"  se  to  run  along  a  sidewalk  in  the  dark, 
and  where  horses  attached  to  a  wagon  and  left  unhitched  in  a  bor- 
ough street  after  dark  start  to  run  away,  and  the  owner,  a  com- 
parative stranger  in  the  borough,  running  along  the  sidewalk  ta 
catch  them,  steps  into  a  depression  in  the  sidewalk,  unknown  to 
him,  and  breaks  his  leg,  it  is  for  the  jury,  in  an  action  for  damages 
for  the  injury,  to  say  whether  the  plaintiff  exercised  reasonable 
care  under  the  circumstances,  or  was  guilty  of  contributory  negli- 
gence.^ 

Although  the  plaintiff  was  familiar  with  the  country  road  on 
which  he  was  injured  by  falling  into  an  unguarded  excavation 

'^Arey  v.  Newton,  148  Mass.  598. 

^Worker  v.  Sandy  Lake,  130  Pa.  123. 

^Dickson  v.  Eollkter,  123  Pa.  421. 

^Delory  v.  Canny,  144  Mass.  445,  4  New  Eng.  Rep.  258. 

^Sliook  V.  Colwes,  108  N.  Y.  648,  11  Cent.  Rep.  801.     See  Osborne  v.  Detroit, 

32  Fed.  Rep.  36. 
^Shmandoah  v.  Erdman{VQ..  Feb.  27,  1888)  11  Cent.  Rep.  440. 


Chap.  YIIL]  LIABILITY    FOE    INJURY    TO    TKAVELEK.  131 

therein,  at  night  time,  yet  the  question  of  his  neojh'gence  and  the 
liabihty  of  the  township  was  a  proper  one  for  the  jury ;'  and 
one  who  in  violation  of  an  express  statutory  duty  places  or 
causes  an  obstruction  in  a  public  highway,  will  not  be  permitted 
to  show  that  he  did  not  anticipate  an  iujur}^  which  was  the  direct 
result  of  his  unlawful  act,  when  the  person  suffering  the  injury 
was  without  fault." 

The  question  whether  plaintiff,  suing  for  personal  injuries  fi'om 
a  defective  highway,  was  a  traveler,  will  not  be  submitted  to  the 
jury  where  there  is  no  evidence  to  show  that  he  was  not  a  traveler." 

Whether  a  traveler  in  deviating  from  the  usual  path  of  travel, 
although  the  traveled  track  was  in  good  condition,  was  using  rea- 
sonable and  necessary  care,  is  a  question  for  the  jury.* 

An  injury  to  lands  or  houses  which  renders  them  useless,  or 
even  uncomfortable  for  habitation,  is  a  nuisance. °  Using  a  smith's 
forge,"  operating  a  tobacco  mill,'  carrying  on  a  tannery,*  keeping 
a  livery  stable,"  manufacturing  soap,"  under  such  circumstances, 
have  been  respectively  held  to  constitute  a  nuisance.  If  one  fixes 
a  spout  or  cornice  which  gathers  the  water  that  falls  upon  his 
roof,  and  turns  it  upon  his  neighbor's  land,  an  action  lies."  If 
one's  real  estate  is  thus  protected,  his  person  must  be  equally  pro- 
tected. If  water  may  not  be  thrown  upon  his  land,  it  may  not 
be  thrown  upon  his  head  while  he  is  standing  on  his  land.  A 
traveler  in  the  use  of  the  highw^ay  is  as  much  entitled  to 
protection  as  if  he  were  the  owner  in  fee  simple;  and,  as  a 
formal  proposition,  it  is  true  that  an}'-  act  of  an  individual 
though  performed  on  his  own  soil,  if  it  detracts  from  the  safety 
of  travelers,  is  a  nuisance.'"     It  cannot  be  doubted  that  the  pro- 

^Mill  Greek  Ttop.  v.  Pernj  (Pa.  Nov.  7,  1887)  10  Cent.  Rep.  299. 

^Wabash,  St.  L.  &  P.  R.  Co.  v.  Locke,  113  lad.  404,  11  West.  Rep.  877. 

Worris  v.  Haverhill,  G5  N.  H.  89. 

^Austin  V.  Ritz,  73  Tex.  391. 

^Howard  v.  Lee,  3  Sandf.  281. 

'^Bradley  v.  Oill,  Lutw.  29. 

"> Jones  V.  Poicell,  Hutt.  136. 

^Rex  V.  Pappineau,  1  Str.  6S6. 

^Coker  v.  Birge,  10  Ga.  336; 

^°Brady  v.  Weeks,  3  Barb.  157. 

^^Rei/nolds  v.  Clarke,  3  Ld.  Rayra.  1399,  1  Str.  634;  Fay  v.  Prentice,  1  C  B. 

829;  Fellows  v.  Sackett,  15  Barb.  96. 
^■Dygerl  v.  Sckenck,  23  Wead.  447. 


132  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

prietor  of  land  adjoining  the  highway  may  erect  upon  it  a  struc- 
ture that  would  catch  falling  rain  and  snow  and  retain  it  until  it 
becomes  a  large  mass,  and  allow  it  to  freeze  and  thaw ;  but  he 
must  so  construct  his  roof  that,  after  the  mass  has  accumulated,  it 
will  not,  in  certain  states  of  the  weather,  be  projected  by  its  own 
weight  upon  the  sidewalk.^ 

^Shipley  V.  Fifty  Asso.  101  Mass.  251. 


CHAPTEE  IX. 

WHEN  PROOF  OF  NEGLIGENCE  REQUIRED. 

Sec.  15.  Injury  from  Unusual  Cause,  not  in  Itself  a  Nuisance,  Re- 
quires Proof  of  Negligence  also. 

Sec.  16.  The  Cause  of  an  Injury  may  Create  a  Presumption  of 
Negligence  in  the  Person  Setting  it  in  Motion. 

Section  15. —  Injury  from  TInusual  Cause,  not  in 
Itself  a  JYuisance,  Requires  Proof  of  JS^egli- 
gence  also. 

Mischief  which  could  by  no  reasonable  possibility  have  been 
foreseen,  and  which  no  reasonable  person  would  have  anticipated, 
cannot  be  taken  into  account  as  a  basis  upon  which  to  predicate  a 
wrong,  A  reasonable  man  does  not  consult  his  imagination, 
but  can  be  guided  only  by  a  reasonable  estimate  of  probabilities. 
The  reasonable  man,  then,  to  whose  ideal  behavior  we  are  to  look 
as  the  standard  of  duty,  will  neither  neglect  what  his  reason  and 
experience  will  enable  hini  to  forecast  as  probable,  nor  conduct, 
on  a  basis  of  bare  chances,  a  business  whose  success  is  dependent 
upon  his  accuracy  in  forecasting  the  future.  He  will  order  his 
precaution  by  the  measure  of  what  appears  likely  in  the  usual 
course  of  things.' 

The  proper  inquiry  is  not  whether  the  accident  might  have  been 
avoided  if  the  one  charged  with  negligence  had  anticipated  its  oc- 
currence, but  whether,  taking  the  circumstances  as  they  then  ex- 
isted, he  was  negligent  in  failing  to  anticipate  and  provide  against 
the  occurrence.'     The  duty  imposed  does  not  require  the  use  of 

^Nitro-Glycerine  Case,  82  U.  S.  15  Wall.  524,  21  L.  ed.  206;  Crouch  v.  London 
&  N.  W.  R.  Co.  14  C.  B.  291;  Brass  v.  Maitland,  6  El.  &  BI.  485;  Pollak, 
Torts,  36 ;  Readhead  v.  Midland  R.  Co.  L.  R.  4  Q.  B.  379  ;  Vaughan  v. 
Taff  Vale  R.  Co.  5  Hurl  &  N.  679;  McPadden  v.  New  York  C.  R.  Co.  44 
N.  Y.  478;  Louisville  C.  R.  Co.  v.  Weams,  80  Ky.  420;  Chicago,  St.  L.  & 
N.  0.  R.  Co.  V.  Trotter,  61  Miss.  417;  Philadelphia  &  R.  R.  Co.  v.  Yeiser, 
8  Pa.  366. 

*  Muster  v.  Chicago,  M.  &  St.  P.  R.  Co.  61  Wis.  325;  Collyer  v.  Pennsylvania 
R.  Co.  49  N.  J.  L.  59.  4  Cent.  Rep.  568;  Case  v.  Chicago,  R.  1.  d-  P.  R. 
Co.  64  Iowa,  762;  Beatty  v.  Central  Iowa  B.  Co.  58  Iowa,  242,  8  Am.  & 
Eng.  R.  R.  Cas.  210. 


134:  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

every  possible  precaution  to  avoid  injury  to  individuals,  nor  of 
any  particular  means  which  it  may  appear,  after  the  accident, 
would  have  avoided  it.  The  requirement  is  only  to  use  such  rea- 
sonable precautions  to  prevent  accidents  as  would  have  been 
adopted  by  prudent  persons  prior  to  the  accident.' 

In  an  action  for  an  injury,  occasioned  by  the  alleged  negligence 
of  the  defendant,  the  negligence,  if  any,  of  either  plaintiff  or  de- 
fendant, is  to  be  measured  by  the  condition  of  things  at  the  place 
where  the  accident  took  place,  as  they  were  known  to  exist  by  each 
of  the  i^arties  at  the  time  the  acts  of  each  are  complained  of  as 
being  negligent ;  and  these  acts  cannot  be  characterized,  one  way 
or  the  other,  by  the  subsequent  determination  of  conditions  un- 
known at  the  time  to  both,  or  to  either,  except  so  far  as  that 
knowledge  may  properly  affect  the  act  of  the  one  so  informed. 

Between  the  roadbed  of  a  railway,  upon  which  were  laid  two 
tracks,  with  a  space  of  5  to  8  feet  intervening,  and  certain  quar- 
ries, there  was  a  dirt  road,  on  the  average  about  4  feet  lower  than 
the  roadbed,  used  by  quarry  teams;  but  workmen  in  passing  on 
foot  to  and  from  their  work,  as  well  as  other  pedestrians,  used  the 
roadbed,  and  about  7  o'clock  in  the  morning  it  was  customary  to 
find  quite  a  number  of  people  passing  along  it ;  and  the  owners 
of  the  land,  over  which  the  railroad  easement  was  granted,  laid  off 
that  part  of  the  track  lying  west  of  the  roadbed  into  lots  and 
blocks  and  located  on  the  plat  a  street  45  feet  wide,  running  j^ar- 
allel  with  the  west  side  of  the  railroad  track,  and  filed  and  re- 
corded a  dedication  thereof  to  the  public;  and  the  street  was 
afterwards  recognized  by  the  city  on  its  plats,  but  was  never  im- 
proved or  definitely  located  on  the  ground  used,  except  in  connec- 
tion with  the  dirt  road  and  the  railroad ;  and  the  evidence  of  the 
plaintiff,  who  sued  the  railroad  company  for  the  death  of  her  in- 
testate, alleged  to  have  been  caused  by  the  negligence  of  the  de- 
fendant in  running  upon  him,  failed  to  show  the  point  at  which 
the  deceased  entered  upon  the  track,  and  tended  to  show  that  he 
had  been  walking  between  the  rails  on  the  western  track,  for  a 
distance  of  75  or  100  yards,  without  giving  attention  to  trains  ap- 
proaching him  from  the  rear,  when  he  was  struck  by  a  train  hav- 
ing him  in  view  at  a  distance  of  500  yards ;  and  the  evidence  of 

^Chicago,  B.  &  Q.  B.  Co.  v.  Stumps,  55  111.  367;  Article,  Bes  Ipsa  ^oquitur, 
10  Chicago  L.  J.  261. 


Ohap.  IX  J  INJURY    FROM    UNUSUAL   CAUSE.  135 

tlie  defendant  tended  to  show  that  tlie  deceased  was  walkin2:in  the 
space  between  the  east  and  west  tracks  until  the  engine  approached 
within  75  or  90  feet,  when  he  stepped  on  the  west  track  and  was 
ahnost  instantly  struck  by  the  engine,  and  that  as  soon  as  he 
stepped  on  the  track  all  possible  efforts  were  made  to  stop  the 
train;  and  there  was  evidence  that  the  defendant  had  failed  to 
sound  the  bell,  there  being  no  public  crossing,  nor  a  public  street, 
road  or  highway,  properly  speaking,  such  as  are  contemplated  in 
the  Statute  requiring  a  bell  to  be  rung  on  approaching  them. 
Under  these  circumstances  it  was  said  that  the  acts  of  either 
plaintiff  or  defendant  cannot  be  affected  one  way  or  the  other  by 
the  fact,  which  could  only  be  determined  by  an  accurate  survey, 
as  to  where  the  true  line  of  division  between  the  roadbed  and 
street  would  fall,  on  the  one  or  the  other  side  of  the  exact  spot 
where  the  deceased  was  struck,  or  if  it  should  turn  out  that  the 
street  and  roadway  lapped,  and  that  that  spot  was  both  within  the 
limits  of  defendant's  right  of  way  and  also  of  the  platted  street.' 
The  prudence  and  propriety  of  men's  doings  are  not  judged  by 
the  event,  but  by  the  circumstances  under  which  they  act.  If  they 
act  with  reasonable  prudence  and  good  judgment  they  are 
not  to  be  made  responsible  because  the  event  from  causes  which 
•could  not  be  foreseen  nor  reasonably  anticipated  has  disappointed 
their  expectations.^  Where  a  blind  man  fell  through  an  open 
hatchway  in  the  building  of  defendant,  through  his  mistake  in 
•opening  the  wrong  door,  it  was  necessary  to  prove  negligence  of 
the  owner  of  the  building  to  secure  a  recovery.'  If  a  hre  is  kin- 
dled by  one  on  his  own  land  and  there  appears  no  danger  of  its 
spreading  to  endanger  neighboring  lands,  the  person  kindling  the 
"fire  will  not  be  liable  because  such  injury  occurs  by  reason  of  a 
sudden  wind  sweeping  over  the  locality  ;*  nor  if  a  coal  pit  be  fired, 
will  injury  resulting  create  liability,  without  proof  of  negligence.' 

^Guenther  v.  8t.  Louis,  1.  M.  &  S.  R.  Co.  95  Mo.  286,  14  West.  Rep.  735. 

^The  Amethyst,  2  Ware,  28,  2  N.  Y.  Leg.  Obs.  312. 

^Oyshterbojik  v.  Gardner,  17  Jones  &  S.  263. 

^Sweeney  v.  Merrill,  38  Kan.  216;  Calkins  v.  Barger,  44  Barb.  424:  Clark  v. 

Foot,  8  Johns.  ■422;  Stuart  v.  Raicley,  22  Barb.  619;  Falin  v.  Reichart,  8 

Wis.  255. 
^Tourtelot  v.  Rosebrook,  11  Met.  460.     See  Herwy  v.  Nourse,  54  ]\Ie.  256; 

Bachelder  v.  Reagan,  18  Me.  32;  Fraser  v.  Tapper,  29  Vt.  409;   Dewey  v. 

Leonard,  14  Minn.  153;  Vaughan  v.  Toff  Vale  R.  Co.  5  lluil.  &  N.  678. 


136  IMPOSED   DUTIES,  PEKSONAL.  [Part    L 

Where  cotton  in  charge  of  a  warehouseman  was  burned  by  a  fire 
which  originated  in  a  neighboring  oil-mill,  if  the  mill  was  not  a 
cause  of  reasonable  apprehension  of  fire,  either  of  and  by  itself,  or 
taken  in  connection  with  other  surroundings,  danger  of  fire  from 
other  sources  cannof  be  considered  in  determining  liability  from 
negligence  in  leaving  the  cotton  in  that  place.'  So  a  manufac- 
turer of  clothes  who  uses  an  article  in  common  use  for  dyeing, 
and  which  has  never  before  been  known  to  injure  one  handling 
the  cloth,  is  not  liable  to  a  purchaser  who  is  thus  injured,* 
Where  an  injury  results  from  an  act  or  omission  which  could  only 
become  tortious  on  account  of  the  relations  which  the  parties  sus- 
tained to  each  other,  and  where  the  very  substance  of  the  wrong 
complained  of,  itself,  was  the  failure  to  act  with  due  foresight, 
then  the  right  of  action  depends  primarily  upon  so  fixing  the  re- 
lation of  the  parties  as  to  show  the  defendant's  obligation,'  and 
upon  showing  further  that  the  harm  and  injury  complained  of 
were  such  as  a  reasonable  man  in  the  defendant's  place  should  have 
foreseen  and  provided  against,*  In  such  case  it  is  not  enough  to- 
show  that  an  accident  happened,  and  that  death  or  injury  resulted 
therefrom,'  Negligence  is  not  to  be  presumed  upon  the  fact  of 
an  occurrence,  the  statement  of  which  suggests  its  anomalous,  ex- 
ceptional and  extraordinary  character."  For  injury  caused  to  a 
passenger  by  the  fall  of  a  hydrauhc  elevator,  where  it  had  all 
known  safety  appliances,  and  the  owner  had  no  knowledge  or 
reasonable  cause  to  believe  there  was  any  danger  from  air  coming 
from  the  street  pipe,  there  could  be  no  liability  even  if  he  had 
knowledge  that  the  water  was  being  shut  off  from  the  street  main.'' 

^Merchants  Wharf-Boat  Asso.  v.  Wood,  64  Miss.  661. 

^Gould  V.  Slater  Woolen  Go.  147  Mass.  315,  6  New  Eng.  Rep.  599. 

^Creed  v.  Hartmann,  29  N.  Y.  6^\;  Roberts  v.  Johnson,  58  N.  Y.  613, 

*Cottenll  V.  Starkey,  8  Car.  &  P.  691 ;  The  Clarita,  90  U.  S.  23  Wall.  1,  23  L. 
ed.  146. 

^Ashley  v.  Hart,  147  Mass.  573,  1  L.  R.  A.  355;  Atlas  Engine  Works  v.  Ran- 
dall, 100  Ind.  293;  Indiana,  B.  &  W.  R.  Co.  v.  Bailey,  110  Ind.  75,  S 
West.  Rep.  516;  Bowling  v.  Allen,  74  Mo.  13. 

^Buckley  v.  Outta  Percha  &  R.  Mfg.  Go.  113  N.  Y.  540;  Eandelun  v.  Bur- 
lington, G.  R.  &  N.  R.  Co.  73  Iowa,  709;  Blanchett  v.  Border  City  Mfg. 
Go.  143  Mass.  21,  3  New  Eng.  Rep.  92;  Allison  Mfg.  Co.  v.  McCormick, 
118  Pa.  519,  11  Cent.  Rep.  396;  Carstairs  v.  Taylor,  L.  R.  6  Exch.  217; 
Eammack  v.  White.  11  C.  B.  N.  S.  588-593;  Baker  v.  Fehr,  97  Pa.  72; 
Nolan  Y.  Shickle,  3  Mo.  App.  300;  Scliultz  v.  Pacific  R.  Co.  36  Mo,  32. 

''Shattuck  V.  Rand,  142  Mass.  83,  2  New  Eng.  Rep.  378. 


Chap.  IX.]  INJURY    FKOM    UNUSUAL    CAUSE.  137 

In  an  action  ajjainst  one  who  had  contracted  to  haul  tlie  water 
pipes  to  be  used  in  the  repair  of  a  certain  street,  for  the  death  of 
a  child  upon  wiiom  one  of  the  water  pipes  had  rolle(^  from  th& 
place  in  which  it  waspiled,  so  secured  and  protected  that  it  would 
have  remained  tliere  unless  disturbed  by  some  unexpected  force, 
no  recovery  was  allowed.'  So  a  railroad  company  is  not  liable 
to  an  engineer  for  injuries  caused  by  the  breaking  of  a  rail  having 
710  visible  defect,  which  is  occasioned  by  frost.*  To  load  a  tender 
with  coal  above  the  level  of  the  top  is  not  negligence  j?*?/*  se  ;  and 
notice  to  the  railroad  company  that  its  employes  were  in  the  habit 
of  so  doing,  without  knowledge  or  notice  that  such  practice  was 
dangerous,  is  not  sufficient  to  make  a  company  liable  to  a  track- 
walker by  coal  falling  on  him  resulting  from  such  method  of  load- 
ing.^ A  railroad  company  is  not  bound  to  have  at  a  given  point 
an  engine  of  sufficient  power  to  avert  the  consequences  of  an  ac- 
cident which  it  had  no  reason  to  anticipate.  Thus,  where  an  em- 
ploye was  caught  by  the  brakebeam  of  a  moving  car,  and  injured, 
the  company  was  held  not  liable  merely  because  the  engine  at- 
tached to  such  car  was,  by  reason  of  a  defect  in  its  flue  and  main- 
steam  valve,  not  sufficiently  powerful  to  stop  the  car  in  time  to 
avert  the  injury.*  One  working  a  coal  mine  is  not  bound  as  to 
his  employes  to  take  precaution  against  all  possible  dangers.  His 
full  duty  is  performed  by  guarding  them  against  those  reasonably 
probable." 

Where  the  obligation  is  not  in  its  nature  so  nearly  absolute  a& 
it  is  said  to  be  in  case  of  a  passenger,  and  the  circumstances  of  the 
accident  suggest,  at  first  blush,  that  it  may  have  been  unavoidable 
notwithstanding  ordinary  care,  the  plaintiff,  charging  negligence, 
assumes  the  burden  of  proving  that  the  defendant  has,  by  some 
act  or  omission,  violated  a  duty  incumbent  on  it,  from  which  the 
injury  followed  in  natui  al  sequence;*  and  even  in  the  extreme  case 
of  a  carrier,  that  which  never  happened  before  and  w^hich,  in  its 

^Stafford  v.  Rubens,  115  111.  196,  1  West.  Rep.  640.  See  Baldwin  v.  St. 
Louis,  K.  &  N.   R.  Go.  68  Iowa,  37. 

^Devlin  v.  Wabash,  St.  L.  &  P.  R.  Co.  87  Mo.  545,  4  West.  Rep.  54. 

^Schultz  V.  Chicago  &  N.  W.  R.  Co.  67  Wis.  616. 

*Bajus  V.  Syracuse,  B.  &  N.  T.  R.  Co.  103  N.  Y.  313,  4  Cent.  Rep.  518. 

^Brew  V.  Oaylord  Coal  Co.  (Pa.  Apr.  26,  1886)  3  Cent.  Rep.  389. 

^itro  Glycerine  Case,  82  U.  S.  15  Wall.  524,  21  L.  ed.  206;  Mitchell  v.  Chi- 
cago &  G.  T.  R.  Co.  51  Mich.  236;  Patterson,  R.  Ace.  L.  §  373. 


138  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

■character,  is  sncli  as  not  naturally  to  occur  to  a  prudent  man  to 
guard  against  its  happening  at  all,  cannot,  when  in  the  course  of 
3'ears  it  dt>es  happen,  furnish  good  ground  for  a  charge  of  negli- 
gence in  not  foreseeing  its  possible  happening  and  guarding 
against  that  remote  contingency.' 

In  Dougan  v.  Champlain  Transp.  Co.,  56  I^.  Y.  1,  the  plain- 
tiff's intestate,  a  passenger,  slipj)ed  under  the  gangway  rail  of  a 
steamboat,  fell  overboard  and  M^as  drowned;  and  it  appeared  that 
all  the  boats  upon  Lake  Champlain  were  constructed  in  the  same 
manner,  that  they  had  been  so  run  for  many  years,  and  there  was 
no  proof  tending  to  show  that  anyone  had  gone  overboard  in  that 
way.     The  plaintiff  having  been  nonsuited,  the  judgment  was  af- 
firmed on  the  ground  that,  as  there  was  no  proof  tending  to  show 
that  any  such  danger  would  be  apprehended  by  a  reasonably  prudent 
person  from  the  omission  to  inclose  the  space  between  the  railing 
and  deck  so  as  to  preclude  the  possibihty  of  slipping  under  it,  no 
such  duty  was  by  law  imposed  upon  the  Transportation  Company. 
In  Loftus  V.  Union  Ferry  Co.,  84  N.  Y.  455,  the  plaintiff's  intes- 
tate, a  child  of  six  years,  while  leaving  one  of  the  defendant's  boats, 
fell  through  one  of  the  openings  of  the  guard  rails  into  the  water 
and  was  drowned.     Tlie  plaintiff  having  recovered,  the  verdict 
was  set  aside,  and  Andrews,  «/.,  in  affirming  the  judgment,  held 
that,  if  the  defendant  ought  to  have  foreseen  that  such  an  accident 
might  happen,  or  if  such  an  accident  could  have  reasonably  been 
anticipated,  the  omission  to  provide  against  it  would  be  actionable 
negligence;  but  the  facts  in  that  case  rebutted  any  inference  of 
negligence  in  that  respect,  as  the  company  had  the  experience  of 
years  certifying  to  the  sufficiency  of  the  guard;  that  it  was  possi- 
ble for  a  child,  even  a  man,  to  get  through  the  opening  was  appar- 
ent enough,  but  that  this  was  likely  to  occur  was  negatived  by  the 
fact  that  multitudes  of  persons  had  passed  over  the  bridge  with- 
out the  occurrence  of  such  a  casualty.     In  Le  Barron  v.  East 
Boston  Ferry  Co.,  11  Allen,  312,  a  ferry  boat  was  held  not  liable 
as  matter  of  law  for  the  loss  by  a  driver  of  his  load  through  his 

'  Crocheron  v.  North  Shore  8.  1.  F.  Co.  56  N.  Y.  656;  Dougan  v.  Champlain 
Transp.  Co.  56  N.  Y.  1;  Cleveland  v.  New  Jeraey  Steamboat  Co.  68  N.  Y. 
308;  Loftus  v.  Union  Ferry  Co.  84  N.  Y.  455;  Burke  v.  Wiiherbee,  98 
N.  Y.  562;  Marsh  v.  Chickering,  101  N.  Y.  396;  HulbeU  v.  Tonkers,  104 
N.  Y.  434,  6  Cent.  Rep.  499. 


Chap.  IX.]  INJURY    FROM    UNUSUAL    CAUSE.  13l> 

wagon  striking  the  fall  of  the  ferry.  And  this  is  true  where  the 
arm  of  a  passenger  was  injured  by  being  caught  between  the  car 
and  an  overliangiiig  portion  of  a  load  on  a  standing  car,'  or  by 
•contact  between  street  car  and  load  of  hay,"  or  by  the  dropping  of 
the  fastening  of  a  bridge  erected  under  charge  of  town  authorities,' 
or  where  a  depot  roof  was  broken  down  upon  a  passenger/  or  an 
injury  resulted  in  stepping  from  a  car.* 

In  a  recent  case  it  appeared  that  a  passenger  seated  in  a  railway 
•ear  was  injured  by  the  falling  of  a  clothes-wringer  from  tlic  rack 
above  the  seat,  another  passenger  having  placed  it  there.  There 
was  no  evidence  that  the  position  of  the  wringer  in  the  rack  Avas 
such  as  to  indicate  that  it  was  insecure,  or  that  there  was  any 
reason  to  anticipate  that  an  accident  might  happen.  It  was  held 
that  the  failure  of  the  trainmen  to  notice  the  wringer,  or,  if 
noticed,  to  order  its  removal,  was  not  negligence.* 

Grafter  v.  Metropolitan  B.  Co.,  L.  R.  1  C.  P.  300,  was  a  suit 
to  recover  for  an  injury  occasioned  by  the  plaintiff  falling  on  a 
stairway  which  the  defendant's  duty  required  it  to  keep  in  a  safe 
condition.  The  cause  of  the  slipping  was  that  the  brass  nosing  of 
the  stairs  had  been  worn  smooth  by  travel  over  it;  and  a  builder 
testified  that,  in  his  opinion,  the  staircase  was  unsafe  on  account 
•of  the  smooth  condition  of  the  nosing  and  the  absence  of  a  hand- 
rail. There  was  nothing  to  contradict  this,  except  that  great 
numbei's  of  persons  had  passed  over  the  stairs,  and  that  no  acci- 
•dent  had  ever  happened  before.  Setting  aside  a  verdict  for  the 
plaintiff,  the  court  held  there  was  no  evidence  of  negligence.'' 

In  Wabash,  St.  L.  &  P.  R.  Co.  v.  Loche,  llSInd.  404,  11 
West.  Rep.  877,  the  decedent,  in  his  line  of  duty,  was  standing  on 
a  flat  car  on  a  side  track  of  the  defendant's  railway  near  the  depot, 

1  Holbrook  v.  Utica  &  S.  B.  Co.  12  N.  Y.  236. 

2  Federal  St.  &  P.  V.  R.  Co.  v.  Gibson,  96  Pa.  83. 

3  Daniel  v.  Metropolitan  R.  Co.  L.  R.  3  C.  P.  216. 

4  Welfare  v.  London  <&  B.  R.  Co.  L.  R.  4  Q.  B.  663. 

^Mitcliell  V.  Chicago  &  O.  T.  R.  Co.  51  Mich.  236;  Delaware,  L.  &  W.  R. 
Co.  V.  Napheys,  90  Pa.  135.  See  Gerhard  v.  Bates,  2  El.  &  Bl.  490;  Sief- 
fen  V.  Chicago  &  N.  W.  R.  Co.  46  Wis.  259;  Kitterinqham  v.  Sioux  City 
<&  P.  R.  Co.  63  Iowa,  285;  Sikes  v.  Sheldon,  58  Iowa,  744. 

^Morris  v.  New  York  C.  &  H.  R.  R.  Co.  106  N.  Y.  678,  9  Cent.  Rep.  288. 

^Blyth  V.  Birmingham  Water  Works  Co.  11  Exch.  781;  Metropolitan  R.  Co. 
V.  Jackson,  L.  R.  3  App.  Cas.  193;  Sharp  v.  Powell,  L.  R.  7  C.  P.  253. 


140  IMPOSED    DUTIES,  PERSONAL.  [Part    I.. 

and  a  line  of  telegraph  poles  of  the  usual  height,  which  supported 
wires  crossing  the  track  to  the  depot,  stood  along  the  company's 
right  of  way,  where  they  had  been  maintained  substantially  in  the 
same  position  since  1874, — one  of  the  wires  being  used  by  the 
railway  company',  the  other  in  the  business  of  the  telegraph  com- 
pany,— and  a  freight  train  running  on  its  usual  time  at  a  moder- 
ate rate  of  speed  approached  the  station  over  the  main  track,  and 
on  the  top  of  one  of  the  cars,  somewhat  above  the  ordinary  height,^ 
stood  a  brakeman,  six  feet  three  and  a  half  inches  in  height, 
whose  head  came  in  contact  with  one  of  the  wires  which  crossed 
the  track,  which  struck  the  back  of  his  head  or  neck  about  the 
lower  part  of  the  ear,  inflicting  only  a  sliglit  bruise.  The  blow^ 
however,  broke  the  insulator  of  the  telegraph  pole,  causing  the 
wire  to  become  detached  and  fall  down  on  the  top  of  a  moving 
car,  catching  a  brake-handle  which  carried  it  forward  with  the 
moving  train,  the  wire  coiKng  about  the  body  of  the  decedent  as  he 
stood  on  the  flat  car,  dragging  him  from  the  car,  and  inflicting  in- 
juries resulting  in  instant  death.  A  verdict  having  been  rendered 
against  the  defendant  and  the  telegraph  company  in  a  suit  for 
negligently  causing  the  death,  judgment  was  rendered  thereon 
against  the  defendant  alone,  and  upon  appeal  the  judgment  was 
reversed  upon  the  ground  that  the  record  failed  to  disclose  any 
evidence  from  which  a  reasonable  inference  could  fairly  arise  that 
the  railroad  company  had  omitted  any  precaution  which  prudent 
persons  engaged  in  any  like  business  would  have  taken. 

It  was  said  that  a  telegraph  wire  carried  from  one  pole  to  another 
is  not,  in  and  of  itself,  a  dangerous  object.  If  it  should  become 
detached  and  fall  to  the  ground  or  upon  someone,  it  would  not, 
under  ordinary  circumstances,  put  life  or  limb  in  jeopardy.  It 
could  only  become  a  source  of  danger  to  persons  other  than  those 
who  came  in  contact  with  it  by  some  combination  of  circumstances 
or  conjunction  of  forces  beyond  the  telegraph  wire  itself.  The 
railroad  company  was  only  bound  to  anticipate  such  combination 
of  circumstances  and  accidents  and  injuries  therefrom  as,  taking 
into  account  its  own  past  experience,  and  that  of  others  in  similar 
situations,  together  with  what  was  inherently  probable  in  the  con- 
dition of  the  wires  as  they  related  to  the  conduct  of  its  business,  it 
might  reasonably  forecast  as  likely  to  happen.     The  chief  consid- 


Chap.  IX.]  INJUKY    FKOM    UNCSUAL   CAUSE.  141 

-eration  would  be  the  height  of  the  wires  above  the  track,  involv- 
ing the  safety  of  those  whose  duty  required  them  to  pass  under, 
on  the  tops  of  freight  trains.  Where  all  connected  with  the  rail- 
road and  telegraph  service,  including  the  "tall  brakeman,"  unite  in 
saying  that  it  never  occurred  to  any  of  them,  before  the  day  of 
the  accident,  that  there  was  danger,  or  that  contact  with  the  wire 
was  ordinarily  possible,  and  on  that  day,  by  a  combination  of 
extraordinary  circumstances  not  at  all  satisfactorily  explained,  the 
tall  brakeman  came  unexpectedly  in  contact  with  the  wire, 
with  fatal  result  to  the  decedent,  the  brakeman  was  not  in  fault. 
He  relied  upon  tne  fact  that  he  passed  under  the  wire  daily,  and 
he  was  therefore  fully  justified  in  supposing  that  he  could  pass 
under  safely  again.  And  it  cannot  be  said  that  the  company — 
notwithstanding  this  brakeman  and  others  supposed  the  wire  to 
be  above  the  possibility  of  contact — must  have  anticipated,  not  only 
the  remarkable  conjunction  of  the  depressed  wire  with  the  tall 
brakeman  erect  upon  the  high  train,  but  that  it  must  have  looked 
beyond  the  brakeman  thus  situated,  and  anticipated  that  the  wire 
might  have  been  knocked  down,  which  in  itself  would  ordinarily 
have  hurt  no  one,  and  that  such  combination  of  circumstances 
would  then  follow  as  might  result  in  serious  injury  to  someone. 
These  cases,  to  a  greater  or  less  extent  at  least,  go  upon  the  theory 
that  persons  who  are  charged  with  a  duty  in  relation  to  a  particular 
matter  or  thing  have  a  right  to  rely  upon  the  sufficiency  of  a 
structure  or  contrivance  such  as  is  in  common  use  for  the  purpose, 
and  which  has  been,  in  fact,  safely  used  and  under  such  a  variety 
of  conditions  as  to  demonstrate  its  fitness  for  the  purpose.  When 
a  structure  or  appliance  such  as  is  in  general  use  has  uniformly 
answered  the  purpose  for  which  it  was  designed  and  used,  under 
every  condition  supposed  to  be  possible  in  the  business,  it  cannot 
in  reason  be  said  that  a  person  has  not  acted  with  ordinary  pru- 
dence and  sagacity  in  not  anticipating  an  accident  which  afterwards 
happens  in  the  use  of  the  thing,  notwithstanding  it  continued  sub- 
stantially in  the  same  condition  all  the  time.  Of  course  if  the 
structure  or  thing  was  inherently  dangerous,  or  had  become  in- 
trinsically insecure,  and  the  person  who  was  responsible  for  its 
safety  had  actual  or  constructive  notice  of  its  condition,  the  fact 
that  it  had  been  used  before  without  injury  would  not  exempt 


142  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

the  person  so  responsible  from  liabilitj^,  when  an  accident  hap- 
pened on  account  of  its  defective  condition.  So,  also,  if  the  thing 
which  occasioned  the  accident  was  inherently  dangerous  or  inse- 
cure, the  fact  that  no  such  occurrence  had  ever  taken  place  before 
would  not  be  conclusive  evidence  that  due  caution  was  observed. 
Extraordinary  and  unusual  occurrences  are  not  to  be  as  readily 
anticipated,  under  any  circumstances,  as  are  those  which  frequently 
happen.  Where  an  event  takes  place,  the  real  cause  of  which 
cannot  be  traced,  or  is  at  least  not  apparent,  it  ordinarily  belongs 
to  that  class  of  occurrences  which  are  designated  as  purely  acci- 
dental; and  in  a  case  where  the  plaintiff  asserts  negligence,  he 
must  show  enough  to  exclude  the  case  from  the  class  of  accidental 
occurrences. 

In  Sjogren  v.  Hall^  53  Mich.  274,  the  plaintiff,  by  some  accident 
not  explained,  lost  his  leg  by  being  caught  in  a  wheel  connected 
with  the  operation  of  a  sawmill  in  which  he  was  employed.  The 
plaintiff  claimed  defendant  was  negligent  in  leaving  the  wheel  un- 
covered, and  that  at  a  very  small  expense  the  accident  could  have 
been  prevented.  Cooley,  J.^  delivering  the  opinion  of  the  court, 
said:  "If  the  accident  which  occurred  was  one  at  all  likely  to 
happen, — if  it  was  a  probable  consequence  of  a  person  working 
about  the  wheel  that  he  would  be  caught  in  it,  as  the  plaintiff  was, 
— there  would  be  ground  for  pressing  this  argument.  But  the 
accident  cannot  be  said  to  be  one  which  even  a  prudent  man  would 
'have  been  likely  to  anticipate.  So  far  as  there  is  a  duty  resting 
upon  the  proprietor  in  any  of  these  cases,  it  is  a  duty  to  guard 
against  probable  dangers;  it  does  not  go  to  the  extent  of  requiring 
him  to  make  accidental  injuries  impossible.'"  So  in  the  case  of 
Allegheny  v.  ZimTnerman^  95  Pa.  287,  which  was  a  suit  to  re- 
cover for  injuries  sustained  by  the  falling  of  a  liberty-pole  which 
had  been  erected  in  the  street,  it  was  held,  following  the  general 
rule,  that  one  is  answerable  in  damages  for  the  consequences  of 
his  faults  only  so  far  as  they  are  natural  and  proximate,  and  may 
therefore  have  been  foreseen  by  ordinary  forecast,  and  not  for  those 
arising  from  a  conjunction  of  his  own  faults  with  circumstances  of 
an  extraordinary  nature." 

iSee  Riclmrds  v.  Bough,  53  Mich.  213;  Mitchell   v.  Chicago  &  O.   T.  B.  Co. 

51  Mich.  236. 
"See  Fairbanks  v.  Kerr,  70  Pa.  86;  Baker  v.  Fehr,  97  Pa.  72;  Hoag  v.  Lake 

Shore  &  M.  8.  B.  Co.  85  Pa.  293. 


Chap.  IX.]        INJURY  FROM  UNUSUAL  CAUSE.  145 

But  if  the  act  be  one  of  negh'gence,  which  may  be  expected 
sometime  to  result  in  injury  to  someone,  although  it  be  long  de- 
layed, the  fact  that  when  the  reasonably  expected  result  follows,  it 
does  so  under  extraordinary  circumstances,  will  not  relieve  the 
negligent  act.  The  injury  need  not  even  be  anticipated  in  the 
particular  case.  It  is  sufficient  to  create  liability  that  such  an  in- 
jury might  be  expected  eventually  from  a  series  of  similar  acts  of 
negligent  omission  or  commission.'  Thus  in  Doyle  v.  Chicago^ 
St.  P.&K.C.  R.  Co.,  77  Iowa,  607,  4  L.  K  A.  420,  it  was  ruled 
that  it  is  negligence  for  the  servants  of  a  railroad  company  to 
leave  a  coupling  pin  unsecured  upon  the  platform  of  a  car  in  mo- 
tion ;  and  the  companj''  is  liable  for  injuries  inflicted  upon  another 
of  its  employes  engaged  in  r6j)airing  a  bridge,  by  reason  of  the 
pin  falling  from  the  platform  and  being  hurled  against  him  by 
the  car  wheels  while  the  train  is  passing  him;  and  the  fact  that  jusst 
such  an  accident  is  unusual,  unexpected,  or  even  unheard  of,  will 
not  excuse  the  negligence  which  causes  it ;  and  in  an  action  to 
recover  damages  for  injuries  resulting  from  such  negligence,  evi- 
dence upon  the  question  whether  or  not  the  particular  accident 
would  be  expected  to  result  from  the  negligent  act,  is  inadmissi- 
ble. And  evidence  that  coupling  pins  are  usually  fastened,  not  to 
prevent  their  doing  damage  if  not  fastened,  but  to  have  them  at 
hand  when  wanted,  is  inadmissible,  as  the  motive  with  which  due 
care  is  exercised  cannot  control  the  effect  of  its  absence.  "While 
it  may  be  true  that  the  accident,  in  the  precise  form  and  with  the 
precise  attending  circumstances  which  resulted  in  plaintiif's  injury, 
could  not  have  been  expected  to  have  happened  from  the  falling 
of  the  pin  from  the  car  upon  the  track,  as  the  reason  or  imagina- 
tion is  unable  to  determine  just  the  effect  of  an  obstruction  upon 
the  track  of  a  railroad;  and  the  result  maybe  unusual,  unexpected, 
indeed,  a  surprise  to  the  most  experienced — never  before  heard  of 
by  anyone — yet  the  act  of  putting  the  obstruction  on  the  track  is 
none  the  less  negligent,  for  it  threatens  danger  in  many  direc- 
tions, and  is  liable  to  produce  many  familiar  results  which 
would  cause  injury.  Now,  surely,  if  it  causes  an  injury  in  any 
way  that  may  be  expected — if  the  results  have  before  been  seen — 
it  cannot  be  said  not  to  be  negligent  because  the  method  was  before 

^Clifford  V.  Denver,  8.  P.  <&  P.  R.  Co.  9  Colo.  333. 


144:  IMPOSED    DUTIES,  PERSONAL.  [Part  I. 

unheard  of,  and  not  within  the  observation  of  anyone,  or  even  not 
anticipated  in  the  exercise  of  reason  or  imagination.  Because  the 
negligence  produced  an  effect  never  before  observed,  it  cannot 
therefore  be  said  that  it  was  the  exercise  of  car^.  Where  the  de- 
fendant ascended  in  a  balloon,  which  descended  a  short  distance 
from  the  place  of  ascent  into  plaintiff's  garden,  and  defendant,  be- 
ing entangled,  called  for  help,  whereupon  a  crowd  of  people  broke 
through  plaintiff's  garden,  and  beat  down  and  destroyed  his  vegeta- 
bles and  flowers,  it  was  ruled  that,  although  ascending  in  a  balloon 
was  not  an  unlawful  act,  yet,under  the  circumstances,  defendant  was 
answerable  for  the  damage  done  to  the  garden  of  plaintiff.'  In 
the  old  reported  case  where  defendant  threw  a  lighted  squib  into 
s,  market  place  where  there  was  a  large  assembly  of  people  and  it 
was  thrown  from  one  stand  to  another  to  avoid  injury,  and  finally 
struck  and  put  out  the  eye  of  plaintiff,  the  defendant  was  declared 
liable  who  first  threw  the  squib." 

When  damage  is  done  to  personal  property,  or  even  to  a  person 
by  a  collision,  either  upon  land  or  at  sea,  there  must  be  negligence 
in  the  party  doing  the  damage,  to  render  him  legally  responsible; 
nor  is  this  confined  to  cases  of  collision,  for  there  are  many  cases 
in  which  proof  of  negligence  is  essential.  The  law  does  not  make 
anyone  an  insurer  against  accidents  in  the  use  of  a  highway ;'  as, 
for  instance,  when  an  unruly  horse  gets  in  a  foot-path  or  public 
street  and  kills  a  passenger.* 

Where  the  roadway  was  in  first-rate  condition  for  its  entire 
width  of  thirty  feet,  and  was  bounded  by  a  curbstone  eiglit  inches 
high  and  by  a  sidewalk  ten  feet  wide,  outside  of  which  was  an  em- 
bankment twelve  feet  deep,  not  guarded  by  a  fence  or  railing,  where 
no  accident  had  before  happened,  although  it  had  been  in  that  con- 
dition ten  years,  and  plaintiff's  horse,  being  frightened  by  a  bicycle, 
left  the  roadway  and  dragged  his  wagon  over  the  embankment, 
thereby  injuring  the  plaintiff,  it  was  held  that  the  failure  to  place 
a  railing  or  fence  to  the  embankment  was  not  negligence,  and  that 
it  was  error  to  submit  the  question  to  the  jury/ 

^Quille  V.  Swan,  19  Johns.  381. 

^Scoit  V.  Shepherd,  2  W.  Bl.  893. 

^Collins  V.  Leafei/,  124  Pa.  203. 

^Eammack  v.  White,  11  C.  B.  N.  S.  588,  31  L.  J.  N.  S.  C.  P.  129.    See  Her- 

rick  V.  Sullivan,  120  Mass.  576;  Tupper  v.  Clark,  43  Vt.  200. 
^Euhbell  V.  Tankers,  104  N.  Y.  434,  6  Cent.  Rep.  499. 


■Obap.  IX.]        INJURY  FKOE  UNUSUAL  CAUSE.  145 

Traffic  on  the  liighvvays,  whether  by  hmd  or  sea,  cannot  be  con- 
ducted without  exposing  those  whose  persons  or  property  are  near 
it  to  some  inevitable  risk;  and  that  being  so,  those  who  go  on  a 
highway,  or  have  their  property  adjacent  to  it,  may  well  be  lield 
to  do  so  subject  to  thoir  taking  upon  themselves  the  risk  of  injury 
from  that  inevitable  danger,  where  carelessness  cannot  be  charged 
upon  anyone ;  and  persons  who,  by  the  license  of  tlie  owner,  pass 
near  to  warehouses  where  goods  are  being  raised  or  lowered, 
•certainly  do  so  subject  to  the  inevitable  risk  of  accident.  In 
jieither  case  can  they  recover,  without  proof  of  want  of  care  or 
skill  occasioning  the  accident.' 

The  rule  is  that,  in  order  that  liability  shall  attach  for  an  injury 
•occasioned  by  something  not  inherently  dangerous  and  defectiv^e, 
which  is  found  upon  the  ground  of,  or  in  use  by,  one  who  is  under 
a  qualified  obligation  to  the  injured  person,  it  must  be  sliown 
either  that  the  defendant  knew,  or  tliat,  by  the  exercise  of  such 
reasonable  skill,  vigilance  and  sagacity  as  are  ordinarily  possessed 
and  employed  by  persons  experienced  in  the  particular  business  to 
which  the  thing  pertains,  he  should  have  known,  of  its  defective 
and  dangerous  condition,  and  that  the  natural  and  probable  conse- 
•quence  of  its  use  would  be  to  produce  injury  to  someone."  The 
rule  thus  stated  is  entirely  in  accord  with  the  liability  imposed  in 
those  cases  in  which  it  appeared  that  persons  passing  along  public 
streets  or  highways  had  sustained  injury  by  being  struck  by  dan- 
gerous substances  thrown,  or  by  the  falling  of  objects  from  build- 
ings into  public  streets.  It  has  been  held  that,  from  the  happening 
of  such  an  accident,  in  the  absence  of  explanatory  circumstances, 
negligence  will  be  presumed.  These  cases  go  upon  the  theory 
that  the  injurious  thing  was  inherently  and  intrinsically  danger- 
ous, hurtful  and  insecure,  and  that  it  was  hence  necessary  for  the 

^Fletcher  v.  Rylands,  L.  R.  1  Exch.  286  {Mr.  Justice  Blackburn). 

^Goodsell  V.  Taijlor,  41  Minn.  207,  4  L.  R.  A.  673;  Marshall  v.  Welwood  38 
N.  J.  L.  339;  Wabash,  iSt.  L.  &  P.  R.  Go.  v.  Locke,  112  Ind.  404,  11  West. 
Rep.  877;  Norfolk  &  W.  R.  Co.  v.  Jackson  (Ya.  Nov.  22,  1888)  8  S.  E. 
Rep.  370;  SouthWentVa.  Imp.  Co.  v.  Andreio  (Va.  July  4,  1889)  9  S.  E. 
Rep.  1015;  Louisville  &  N.  R.  Co.  v.  Ball,  87  Ala.  708;  Arabello  v.  San 
Antonio  &  A.  P.  R.  Co.(Tex.  May  14, 1889)  11  S.  W.  Rep.  913;  Bogenschutz 
V.  Smith,  84  Ky.  330;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Sandford,  117  Ind. 
265;  Georgia  Pac.  R.  Co.  v.  Propst,  85  Ala.  203;  Aldrich  v.  Midland  Blast 
Furnace  Co.  78  Mo.  559;  Hull  v.  Missouri  Pac.  R.  Co.  74  Mo.  298-  Coluni- 
■bus  &  J.  C.  R.  Co.  V.  Arnold,  31  Ind.  174. 

10 


146  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

defendant  to  sliow  that  lie  was  exercising  reasonable  care  at  tlie 
time  of  the  accident.^ 

Perhaps  the  proposition  may  be'  more  accurately  stated  thnsr 
Traffic  is  lawful,  and  one  engaged  in  a  lawful  pursuit  is  not  liable 
for  injury  he  may,  without  negligence,  inflict  upon  others.  The 
usual  principle  is  that  blame  must  be  imj)utable  as  a  ground  of 
responsibility  for  damage  occurring  from  a  lawful  act." 

Tims,  when  a  traveler  on  the  highway  was  struck  by  a  falling 
door  of  a  moving  freight  car,  no  knowledge  of  a  defect  in  securing 
it  being  actually  brought  home  to  the  railroad  company,  nor  lapse 
of  time  during  which  it  had  continued  being  shown,  there  is  nO' 
liability.^ 

]Sror  can  there  be  any  liability  for  injury  to  an  employe  of  a. 
railroad  company  from  a  mail  bag  thrown  by  a  post-office  agent 
from  a  mail  car  because  of  the  failure  of  thj  company  to  notify 
him  that  iL  might  be  thrown  in  an  unusual  place.'' 

But  the  fact  that  a  particular  thing  or  a  piece  of  machinery  has 
been  used  with  safety  for  years  and  is  not  obviously  dangerous, 
will  not,  where  the  lives  of  others  may  depend  upon  its  safety, 
justify  a  presumption  that  it  will  continue  safe  and  that  its  use 
may  be  continued  without  examining  it  to  ascertain  if  its  safety 
may  not  have  been  impaired  from  wear.^ 

The  mere  fact  of  an  injury  happening  is  not  evidence  of  negli- 
gence.* 

Where  an  injury  happens  from  a  neglect  of  duty  it  must  not 
only  appear  that  it  happened,  but  the  surrounding  circumstances 
must  be  such  as  to  raise  the  presumption  that  it  happened  in  con- 
sequence of  a  failure  of  duty  on  the  part  of  the  defendant  towards- 
the  plaintiff.'' 

•^Mullen  V.  St.  John,  57  N.  Y.  567;  Byrne  v.  Boadle,  2  Hurl.  &  C.  723. 

^Marshall  v.  Wehcood,  38  N.  J.  L.  339. 

^Case  V.  Chicago,  R.  I.  &  P.  R.  Co.  64  Iowa,  762.    See  Collyerv.  Pennsylvania 

R.  Co.  49  N.  J.  L.  59,  4  Cent.  Hep.  568;  Lyons  v.  Rosenthal,  11  Hun,  46. 
'^MusUr  V.  Chicago,  M.  &  St.  P.  R.  Co.  61  Wis.  325. 
^Ooodsell  V.  Tmjlor,  41  Minn.  207,  4  L.  R.  A.  678. 
^Haminack  v.  White,  11  0.  B.  N.  S.  53S;  Bird  v.   Great  Northern  R.  Co. 

28  L.  J.  N.  S.  Exch.  3;    Welfare    v.    London  &  B.  R.  Co.  L.  R.  4  Q.  B. 

698;  Smith  v.  Great  Eastern  R.  Go.  L.  R.  2  C.  P.  10;  Baltimore  Elexaior 

Co.  V.  Neal,  65  Md.  438,  3  Cent.  Rep.  856. 
'Article,  Res  Ipsa  Loquitur,  10  Chicago  L.  J.  261. 


Chap.  IX.]  PKESUMPTION    OF   NEGLIGENCE.  147 

The  fact  of  killing  or  injur}',  in  tlie  absence  of  any  statutory 
provision  to  that  elfect,  does  not  constitute  of  itself  any  presump- 
tion of  negligence.' 

Section  u.—The  Cause  of  an  Injury  may  Create  a 
Presumption  of  JVegligence  in  the  Person  Set- 
ting It  in  Motion. 

An  injury  may,  however,  be  from  such  causes  or  of  such  a 
character  as  to  raise  a  presumption  of  negligence;  as,  where  the 
particular  thing  causing  the  injury  has  been  shown  to  be  under 
the  management  of  the  defendant  or  his  servants,  and  the  casualty 
is  such  as  in  the  ordinary  course  of  things  does  not  happen  if 
those  who  have  the  management  use  proper  care,  it  affords  rea- 
sonable evidence,  in  the  absence  of  explanation,  that  the  casualty 
arose  from  want  of  care.* 

It  is  a  maxim  of  the  common  law  that  the  owner  of  the  soil  has 
absolute  dominion  over  the  same  indefinitely,  above  and  below  the 
surface  ;  and  that  whatever  damages  to  others  he  may  occasion 
by  his  rightful  command  over  his  own  soil  is  damnum  absque  in- 
juria.^ 

^Little  Rock  &  Ft.  S.  R.  Co.  v.  Benson,  39  Ark.  413;  LMe  Rock  &  Ft.  8 
R.  Go.  V.  Holland,  40  Ark.  336;  Chicago  &  M.  R.  Co.  v.  Patchin,  16  111. 
198;  Great  Wtstern  R.  Co.  v.  Morthland,  30  111.  451;  Indianapolis  &  C.  R. 
Co.  V.  Means,  14  Ind.  30;  Schneir  v.  Chicago,  R.  1.  &  P.  R.  Co.  40 
Iowa,  337;  Flattes  v.  Chicago,  R.  I.  &  P.  R.  Co.  35  Iowa,  191;  Kentucky 
Cent.  R.  Co.  v.  Talbot,  78  Ky.  621 ;  WJdttier  v.  Chicuqo,  M.  &  St.  P.  R.  Co. 
26  Minn.  484;  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Enochs,  42  Miss.  603: 
Mobile  dk  0.  R.  Co.  v.  Hudson,  50  Miss.  572;  Brown  v.  Hannibal  &  St.  J 
R.  Co.  33  Mo.  309;  Walsh  v.  Virginia  &  T.  R.  Co.  8  Nev.  Ill;  Scott  v. 
Wilmington  &  R.  R.  Co.  4  Jones,  L.  432;  Lyndsay  v.  Connecticut  &  P. 
R.  R.  Co.  27  Vt.  643.  See,  however,  Roberts  v.  Johnson,  58  N.  Y.  613; 
Memphis  &  0.  R.  Packet  Co.  v.  McCool,  83  Ind.  392;  Delaware,  L.  &  W. 
R.  Co.  V.  Napheys,  90  Pa.  135;  Quinn  v.  South  Carolina  R.  Co.  29  S  C 
381,  1  L.  R.  A.  682. 

^  Scott  V.  London  &  St.  K.  Docks  Co.  3  Hurl.  &  G.  596;  Edgerton  v.  New 
York  &  H.  R.  Co.  39  N.  Y.  227;  Mullen  v.  St.  John,  57  N.  Y.  567;  Lyons 
V.  Rosenthal,  11  Hun,  46;  Breen  v.  New  York  C.  &  H.  R.  R.  Co.  109  N.Y 
297,  11  Cent.  Rep.  891;  Holbrook  v.  Utica  &  8.  R.  Co.  12  N.  y.  236; 
Kirst  V.  Milwaukee,  L.  S.  &  W.  R.  Co.  46  Wis.  489;  Byrne  v.  Boadle,  2 
Hurl.  &  C.  722;  Briggs  v.  Olson,  4  Hurl.  &  C.  403;  Kearney  v,  London, 
B.  &  8.  G.  R.  Co.  L.  R.  5  Q.  B.  411,  L.  R.  6  Q.  B.  759. 

^Rawstron  v.  Taylor,  11  Exch.  S69;  Gannon  v.  Hargadon,  10  Allen,  106 
Luther  v.  Winnisimmet  Co.  9  Cush.  171;  Flagg  v.  Worcester,  13  Gray 
601;  Dickinson  v.  Worcester,  7  Allen,  19.  To  the  same  effect  are  Frank 
lin  V.  Fisk,  13  Allen,  211;  Greeley  v.  Maine  Cent.  R.  Co.  53  Me.  200 
Bowlsby  V.  Speer,  31  N.  J.  L.  351;  Pettigrew  v.  Evansville,  25  Wis.  223,  3 


148  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

Where  the  maxim  sic  utere  tuo  ut  alienum  non  Icedasis  applied 
to  land,  it  is  subject  to  a  certain  modification,  it  being  necessary 
for  the  plaintiff  to  show,  not  only  that  he  has  sustained  damage, 
but  that  the  defendant  has  caused  it  by  going  beyond  what  is  nec- 
essary in  order  to  enable  him  to  have  the  natural  use  of  his  own 
land.' 

Every  man  is  entitled  to  the  ordinary  and  natural  use  and  enjoy- 
ment of  his  property ;  he  may  cut  down  the  forest  trees,  and  clear 
and  cultivate  his  land,  although  in  so  doing  he  may  dry  up  the 
source  of  his  neighbor's  springs,  or  remove  the  natural  barrier 
against  wind  and  storm,^ 

If  a  person  erects  a  building  upon  a  city  street  or  an  ordinary 
highway,  he  is  under  legal  obligations  to  take  reasonable  care  that 
it  shall  not  fall  into  the  street  and  injure  persons  lawfully  there; 
and  while  it  cannot  be  affirmed  that  he  is  liable  for  any  injury 
that  may  occur,  whether  by  inevitable  accident  or  the  wrongful 
act  of  others,  it  is  not  to  be  disputed  that  he  is  liable  for  the  want 
of  reasonable  care.' 

It  is  held  in  I^eg.  v.  Watts,  1  Salk.  357,  that  a  house  likely  to 
fall  is  a  nuisance,  for  w^hich  an  indictment  lies  against  the  occu- 
pier. Church  of  the  Ascension,  v.  BucTchart,  3  Hill,  193,  shows 
that  it  is  the  duty  of  the  owner  of  a  ruinous  building  to  prevent 
its  walls  from  falling;*  and  as  buildings  properly  constructed  do 
not  fall  without  adequate  cause,  if  there  be  no  tempest  prevailing, 
and  no  external  violence  of  any  kind,  the  fair  presumption  is  that 
a  fall  occurs  through  adequate  causes,  such  as  the  ruinous  condi- 
tion of  the  building,  which  could  scarcely  have  escaped  the  obser- 
vation of  the  owner.     The  mind  is  thus  led  to  a  presumption  of 

Am.  Rep.  50;  Eoyt  v.  Hudson,  27  Wis.  656,  9  Am.  Rep.  473;   O'Connor 

Y.  Fond  du  Lac,  A.  &  P.  B.  Co.  52  Wis.  526,  38  Am.  Rep.  753;  Taylor  v. 

Fickas,  64  Ind.  167,  31  Am.  Rep.  114;   Cairo  &   V.  R.  Co.  v.  Stevens,  73 

Ind.  278,  38  Am.  Rep.  139;  Oibbs  v.  Williams,  25  Kan.  214,  37  Am.  Rep. 

241;  BarUey  v.   Wilcox,  86  N.  Y.  140,  40  Am.  Rep.  519;  Acton  v.  Blun- 

dell,  12  Mees.  &  W.  324;  Phelps  v.  Nowlen,  72  N.  Y.  39,  28  Am.  Rep.  93; 

Butler  V.  Peck,  16  Ohio  St.  335. 
^West  Cumberland  1.  &  8.   Co.  v.  Eenyon,  L.  R.  11  Ch.  Div.  782;  Penn- 

syhania  Coal  Co.  v.  Sanderson,  113  Pa.  126,  4  Cent.  Rep.  481. 
'^Pennsylvania  Goal  Co.  v.  Sanderson,  113  Pa.  126,  4  Cent.  Rep.  480. 
2  Merrick,  J.,  in  Eirby  v.  Boylston  Market  Asso.  14  Gray,   249;    Lorcell  v. 

Spaulding,  4  Cusli.  277;  Oakham  v.  Ilolbrouk,  11  Cush.  299;  Davenport  y. 

Buckman,  10  Bosw.  20,  37  N.  Y.  568. 
*See  Simmons  v.  Elliott,  Montreal  L.  Rep.  5  Super.  Ct.  182. 


Chap.   IX.]  PRESUMPTION    OF   NEGLIGENCE.  149 

negligence  on  his  part,  which  may  of  conrse  be  rebutted.  In  the 
absence  of  explanatory  evidence,  negligence  may  be  presumed.' 
There  is  no  doubt  but  that  the  owner  is  responsible  for  his  negli- 
gence either  in  constructing  or  upholding  a  freehold;'  but  the 
presumption  of  negligence  from  an  injury  caused  by  the  fall  of  a 
building  may  be  rebutted  by  evidence  that  the  fall  was  caused  by 
another,  and  for  the  negligent  use  of  it  by  others  the  owner  can- 
not be  made  liable.  He  has  met  the  requirements  of  the  law 
when  each  and  every  part  of  the  building  is  properly  and  securely 
adapted  to  its  particular  use.  In  Scullin  v.  Dolan,  4  Daly,  1G3, 
plaintiff  was  injured  while  passing  along  a  public  street  by  the 
falling  of  a  stone  coping  from  defendant's  chinrincy,  but,  it  appear- 
ing that  the  chimney  was  secure  and  fit  for  the  purpose  for  which 
it  was  intended,  and  it  being  shown  that  the  stone  coping  was  ac- 
cidentally thrown  off  from  the  chimney  by  a  third  person  while 
in  the  improper  and  unauthorized  use  of  it,  it  was  ruled  that  de- 
fendant was  not  liable  for  neglect.  But  the  owner  and  occupier 
of  land,  who,  not  parting  with  possession,  has  given  another  a 
license  to  come  upon  his  property  and  do  certain  acts,  in  doing 
which  an  actual  nuisance  is  created,  is  presumably  equally  liable 
for  damages  proceeding  therefrom  with  the  licensee,  who  actually 
created  the  nuisance.' 

The  case  of  White  v.  Jameson,  L.  E.  18  Eq.  303,  even  if  full 
effect  be  given  to  it,  does  not  go  to  the  extent,  however,  of  hold- 
ing a  land  owner  liable  for  a  transitory  act  of  a  third  person,  the 
scope  of  which  certainly  cannot  be  enlarged  by  calling  it  a  public 
nuisance,  and  which  has  in  it  no  element  of  continuing  use  of  the 
real  estate.* 

But  the  owner  of  a  building  to  the  chimney  of  which  a  gas 
company  has,  without  the  owner's  consent,  so  affixed  a  wire  as  to 
render  the  chimney  unsafe  and  ultimately  caused  it  to  fall  upon  a 
passer-by,  may  be  liable  for  the  damages  so  caused  by  reason  of 

^Mullen  V.  St.  John,  57  N.  Y.  5G7. 

^Eakin  v.  Broicn,  1  E.  D.  Smith,  36. 

^  White  V.  Jamexon,  L.  K  18  Eq.  303;  Pollock,  Torts,  351;  1  Addison,  Torts 
(Wood's  ed.)  386;  Laugher  v.  Pointer,  5  Barn.  &  C.  547.  560,  Littledale, 
J.;  Quarman  v.  Burnett,  6  Mees.  &  W.  499,  Park,  B.;  Rich  v.  Bditter- 
Jield,  4  0.  B.  783.  802.  Compare  Cuff  v.  Jfewark  &  N.  Y.  R.  Co.  35  N.  J. 
L.  17. 

*Lincoln  v.  Boston,  148  Mass.  578,  3  L.  R.  A.  257.  See  Butterfield  v.  Boston, 
148  Mass.  544;  Com.  v.  Patterson,  138  Mass.  498,  500. 


150  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

his  negligence  in  permitting  it  to  continue  in  sucli  dangerous  con- 
dition for  some  time.' 

There  are  two  distinct  grounds  upon  which  the  owner  of  real 
estate  may  be  held  liable  to  one  who  is  injured  through  a  pitfall, 
a  hidden  danger  or  an  obstruction  upon  his  property.  Where  the 
danger  lies  near  the  pathway  or  a  public  highway,  so  that  a  trav- 
eler may  be  liable  to  stray  upon  it,  the  owner  of  the  real  estate  is 
liable  for  maintaining  a  nuisance."  Where  the  danger  is  not  so 
situated,  the  owner  may  render  himself  liable  to  a  licensee  by 
failure  to  disclose  hidden  dangers.'  So  the  owner  of  real  estate 
may  render  himself  liable  for  any  injury  suffered  by  a  licensee  by 
reason  of  any  change  made  in  the  condition  of  the  premises  with- 
out informing  the  party  who  has  permission  to  enter  upon  the 
premises.*  So  if  he  enter  under  a  contract,  as  where  a  gas  fitter 
sent  to  a  building  fell  through  an  open  hatchway.^ 

In  the  form  of  declaration  suggested  by  Willes,  «/!,  in  Corhy  v. 
Hill,  4  C.  B.  N.  S.  556,  567,  there  is  no  mention  of  allurement  or 
invitation  or  trap  as  a  ground  for  the  liability.  The  facts  sug- 
gested in  that  form  are  "  that  plaintiff  had  a  license  to  go  on  the 
road ;  that  he  was  in  consequence  accustomed  and  likely  to  pass 
along  it ;  tliat  defendant  knew  of  that  custom  and  probability ; 
that  defendant  negligently  placed  slats  in  such  a  manner  as  to  be 
likely  to  prove  dangerous  to  persons  traveling  on  the  road ;  that 
plaintiff  traveled  along  the  road,  being,  by  reason  of  his  license, 
lawfully  on  the  road,  and  that  he  was  injured  by  the  obstruction. 

A  customer  entering  a  merchant's  premises  upon  business  does 
so  in  pursuance  of  an  invitation,  and  has  a  right  to  rely  upon  pre- 
sumed security  from  danger.*     The  same  rule  applies  to  a  ferry- 

^Oray  v.  Boston  Oas  Light  Co.  114  Mass.  149. 

^Barnes  v.  Ward,  9  C.  B.  392;  Iloumell  v.  Smyth,  1  C.  B.  N.  S.  731;  Knight 

V.  Abert,  6  Pa.  472;  Blyth  v.  Topham,  Cro.  Jac.  158. 
^Sonthcoiev.  Stanley,  1  Hurl.  &  N.  247;  Bolchv.  Smith,  7  Hurl.  &  N.  736; 

Pickard  v.  Smith,  10  C.  B.  N.  S.  470;  Seymour  v.  Maddux,  16  Q.  B.  326; 

White  V.  France,  L.  R.  2  0.  P.  Div.  308;  JV^oi-th  Eastern  R.  Co.  v.  Wanless, 

L.  R.  7  H.  L.  12. 
*Oautret  v.  Egerton,  L.  R.  2  C.  P.  371;  Coriy  v.  Hill,  4  C.  B.  N.  S.  556; 

Bennett  v.  Louisville  &  N.  E.  Co.  102  U.  S.  677,  26  L.  ed.  235. 
''Chapman  v.  Bothwell,  El.  Bl.  &  El.  168. 
^Chapman  v.  Bothwell,  El.  Bl.  &  El.  168;"  Holmes  v.  North  Eastern  B.  Co. 

L.  R.  4  Exch.  254;  Indermaur  v.  Dames,  L.  R.  1  C.  P.  274,  L.  R.  2  C.  P. 

311-  Siceeny  v.  Old  Colony  B.  Co.  10  Allen,  368;  McKaney.  Michigan  Cent. 

B.  Co.  51  Mich.  601. 


Chap.  IX.]  PRESUMPTION    OF   NEGLIGENCE.  151 

man,'  tliongh  perliaps  the  ordinary  rule  governing  carriers  would 
be  properly  applied  in  such  case. 

The  law  seems  to  be  that  the  injury  to  one  person  by  another's 
use  of  adjoining  premises  being  clear,  the  burden  is  on  the  latter 
to  disprove  negligence  and  consequent  liability.' 

One  whose  house  is  burned  through  his  neighbor  keeping  a 
hay  rick  on  the  extremity  of  his  land  in  such  a  condition  that  it 
burned  spontaneously  may  recover  the  loss." 

In  Marshall  v.  Welv:ood^  38  N.  J.  L.  339,  the  case  of  Tenant  v. 
Golding,  1  Salk.  21,  360,  2  Ld.  Eaym.  1089,  6  Mod.  311,  was  re- 
ferred as  presenting  merely  the  question  of  whether  a  land  owner 
is  bound,  in  favor  of  his  neighbor,  to  keep  the  wall  of  his  privy 
in  repair,  and  the  court  held  that  he  was,  and  that  he  was  respon- 
sible if,  for  want  of  such  reparation,  the  filth  escaped  on  the  ad- 
joining land.  It  was  said  that  no  question  was  mooted  as  to  his 
liability,  in  case  the  privy  had  been  constructed  with  care  and 
skill,  with  a  view  to  prevent  the  escape  of  the  contents,  and  had 
been  kept  in  a  state  of  repair.  Not  to  repair  a  receptacle  of  this 
kind  when  it  was  in  want  of  repairs  was  said  to  be  in  itself  a 
prima  facie  case  of  negligence,  and  this  was  thought  to  be  all  that 
the  court  decided  in  the  case.  A  consideration  was  also  urged, 
both  with  respect  to  that  case,  and  the  cases  of  injurious  fumes 
from  alkali  works,  against  the  owners  of  which  several  actions 
were  said  to  have  been  brought  for  damages  alleged  to  have  been 
caused  by  the  chlorine  fumes  escaping  from  their  works  (which 
works  the  cases  showed  had  been  erected  upon  the  best  scientific 
principles),  that  the  cases  stand  somewhat  by  themselves,  in  that 
the  things,  in  their  nature,  partake  largely  of  the  character  of  a 
nuisance.  Take  the  alkali  works  as  an  example.  Placed  in  a 
town  under  ordinary  circumstances,  the}'  would  be  a  nuisance. 
When  the  attempt  is  made  by  scientific  methods  to  prevent  the 
■escape  of  fumes  so  as  to  attempt  to  legalize  that  which  is  illegal, 
the  consequence  is  that,  failing  in  the  attempt,  the  nuisance  re- 
mains. But  it  would  be  a  questionable  deduction  to  assert  that  a 
man  is  in  law  an  insurer  that  the  acts  which  he  does,  such  acts 

1  Willowihby  V.  Horridge,  12  C.  B.  743. 

^Reinhardt  v.  Mentasti,  L.  R.  42  Cb.  Div.  085,  40  Alb.  L.  J.  490. 

*  Vaughan  v.  Menlove,  3  Bing.  N.  C.  468,  7  Car.  &  P.  525. 


152  IMPOSED  DUTIES,  PERSONAL.  [Part  T. 

being  lawful  and  done  with  care,  shall  not  injuriously  affect  others. 
The  decisions  stand  rather  opposed  and  as  exceptions  to,  and  not 
traced  to,  principles  which  must  be  considered  much  more  general 
in  their  operation  and  elementary  in  their  nature.  The  common 
rule,  quite  constitutional  in  its  character,  is  that,  in  order  to  sus- 
tain an  action  for  tort,  the  damage  complained  of  must  have  come 
from  a  wrongful  act. 

But  every  owner  of  property,  however  unqualified  and  absolute 
his  title,  holds  it  subject  to  an  implied  liability  that  the  use  there- 
of shall  not  be  injurious  to  the  public.  Eights  of  property,  like 
social  and  conventional  rights,  are  held  subject  to  such  reasonable 
limitations  in  regard  to  their  enjoyment  as  shall  prevent  them 
from  being  injurious  to  the  rights  of  others,  and  to  such  reason- 
able restraint  and  regulations  to  be  established  bylaw  as  the  Legis- 
lature may  ordain  and  establish,  and  any  violation  of  these  regula- 
tions causing  injury  creates  a  presumption  of  negligence.  It  is  on 
this  principle,  applicable  alike  to  all  kinds  of  property,  generally 
denominated  "  the  police  power  of  the  State,"  that  the  authority 
is  found  for  such  control  over  individuals  and  corporations  and 
over  their  property  as  is  necessary  to  insure  safety  to  all  and  pro- 
mote the  public  convenience  and  welfare.* 

A  nuisance  is  distinguishable  from  trespass,  since  it  consists  in 
the  use  of  a  public  place,  or  one's  own  property,  in  such  a  manner 
as  to  cause  injury  to  property,  or  the  right  or  interest  or  person 
of  another.  It  is  the  injury,  annoyance,  inconvenience  and  dis- 
comfort thus  occasioned  that  the  law  regards,  not  the  particular 
business,  trade  or  occupation  from  which  these  result.  A  lawful 
as  well  as  unlawful  business  may  be  carried  on  in  a  place  or  in  a 
manner  so  as  to  prove  a  nuisance."  The  law  in  this  respect  looks 
with  an  impartial  eye  upon  all  avocations  and  professions.  How- 
ever useful,  ancient  or  necessary  the  business  may  be,  if  it  is  so 
conducted  as  to  occasion  serious  annoyance,  injury  or  inconven- 
ience, the  injured  party  has  a  remedy.     Though  the  nuisance  be 

^Sharp  V.  Wfiiteside,  19  Fed.  Rep.  156. 

^Cronin  v.  People,  82  N.  Y.  318;  Bowling  Oreen  v.  Carson,  10  Bush,  64; 
Ash  V.  People,  11  Mich.  347;  St.  Louis  v.  Weber,  44  Mo.  547;  Winnsboro 
V.  Smart,  11  Rich.  L.  551;  Commonwealth  v.  Stodder,  2  Gush.  562;  Re 
Jacobs,  98  N.  Y.  98;  Milwaukee  v.  Gross,  31  Wis.  241;  Laclaire  v.  Damn- 
port,  13  Iowa,  210;  New  Orleans  v.  Stafford,  27  La.  Ann.  417,  21  Am. 
Rep.  563. 


Chap.  IX.]  PRESUMPTION    OF    NEGLIGENCE.  153 

public,  rendering  the  guilty  party  liable  to  indictment,  the  sufferer 
may  recover  compensation  in  a  civil  suit  upon  proving  it  specially 
a  damage  to  himself.' 

It  may  be  said  generally  that  a  land  owner  cannot  perform  any 
work  on  his  land  which  may  have  the  effect  of  depriving  his 
neighbor  of  the  enjoyment  of  his  own  land,  or  which  may  damage 
the  latter." 

The  use  of  a  basement  or  supplemental  kitchen  of  a  hotel  for 
heating  water  and  cooking  pastry,  although  a  reasonable  use  for 
hotel  purposes,  will  be  enjoined  where  it  so  raises  the  temperature 
of  a  wine  cellar  on  adjoining  premises,  separated  by  a  party-wall,, 
as  to  make  it  unlit  for  storing  wine.' 

Under  the  law  of  nuisance,  it  was  held  in  McKeon  v.  See,  4 
Eobt.  449,  51  N.  Y.  300,  that  the  defendant  had  no  right  to  op- 
erate a  steam  engine  and  other  machinery  upon  his  premises  so  as 
to  cause  the  vibration  and  shaking  of  plaintiff's  adjoining  buildings- 
to  such  an  extent  as  to  endanger  and  injure  them.  The  ground 
of  this  decision  was  that  in  the  mode  in  which  they  were  operated, 
the  engine  and  machinery  were  a  nuisance,  and  the  case  must  be 
limited  to  the  facts  before  the  court,  and  cannot  be  fairly  ex- 
tended to  create  a  liability  where  the  machinery,  in  its  use,  did 
not  constitute  a  nuisance. 

In  the  case  of  Marshall  v.  Welwood,  38  N,  J.  L.  339,  it  was 
submitted  to  the  jury  for  a  finding,  whether  the  owner  of  a  steam 
boiler  which  he  kept  to  be  used  on  his  own  premises,  and  which 
exploded,  doing  damage,  was  guilty  of  negligence  which  caused 
the  explosion,  or  whether  the  explosion  was  the  product  of  pure 
accident. 

There  is  a  public  duty  to  exercise  great  care  and  skill  incum- 
bent on  those  having  charge  of  instruments  which,  if  mismanaged, 
are  highly  dangerous  to  the  lives  and  persons  of  men  who  happen 
to  be  in  their  neighborhood ;  and  for  the  nonperformance  of  such- 
duties  a  person  specially  injured  thereby  is  entitled  to  sue.  One- 
whose  property  is  injured  by  the  bursting  of  a  boiler  on  adjacent 
premises,  in  consequence  of  its  mismanagement,  has  a  right  of 

^Cole  V.  Sprowl,  35  Me.  161;  Norcross  v.  Thorns,  51  Me.  503;  Shipley  v.  Fifty 

Asso.  101  Mass.  251. 
^Wilson  V.  Great  Southern  Teleph.  &  Teleg.  Co.  41  La.  Ann."  1041. 
*Beinhardt  v.  Mentasti,  L.  R.  42  Ch.  Div.  685,  40  Alb.  L.  J.  490. 


154  IMPOSED  DcrriES,  PERSONAL.  [Part  I. 

«,ction  tlierefor  against  the  parties  whose  want  of  care  and  skill 
•caused  the  injury;  and  an  insurance  company  which  co-operates 
actively  with  the  owner  of  a  steam-boiler  which  it  has  insured,  in 
its  management,  is  responsible  for  damages  caused  by  want  of  care 
and  skill  in  the  management,  as  not  only  the  owner  of  a  dangerous 
machine,  but  all  persons,  whether  servants  or  volunteers,  who  par- 
ticipate in  its  management,  are  liable  for  the  immediate  and  ob- 
vious damage  caused  by  such  mismanagement.' 

The  fact  that  an  operation  which  causes  the  injurious  substance 
is  authorized  by  statute,  will  not  constitute  a  defense." 

In  Ball  V.  Nye,  99  Mass.  582,  it  was  held  to  be  the  duty  of  the 
land  owner,  in  constructing  a  vault  upon  his  premises,  to  take  care 
that  the  contents  thereof  should  not  percolate  through  the  cellar 
and  wall  of  the  adjoining  proprietor,  and  where  it  did  so  habitually, 
and  to  the  knowledge  of  the  party  who  maintained  the  vault,  such 
percolations  were  evidence  of  negligence  upon  which  the  plaintiff 
was  entitled  to  a  verdict. 

In  Gorham  v.  Gross,  125  Mass.  232,  the  rule  was  thus  stated 
"by  Gray,  Ch.  J.:  "  Where  a  wall,  built  by  one  person  on  his  own 
land,  falls  upon  the  land  of  his  neighbor,  the  owner  has  the  same 
duty  to  keep  on  his  own  land  the  house  or  the  wall  built  thereon 
as  the  filth  in  his  cess-pools,  or  the  water  in  his  reservoir  and  snow 
upon  his  roof.  His  duty  is,  in  the  words  of  Baron  Park,  '  to 
keep  it  in  such  a  state  that  his  neighbor  may  not  be  injured  by  its 
fall.'  "'  He  considered  it  unnecessary  to  decide  whether  it  is  more 
.accurate  to  say  it  is  not  a  question  of  negligence,  and  that  the  de- 
fendant is  liable,  even  in  the  event  of  latent  defect,  or  to  say  that 
the  fall,  while  in  the  absence  of  proof  of  inevitable  accident,  or  of 
the  wrongful  act  of  third  persons,  is  sufficient  evidence  of  negli- 
gence. 

In  Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa.  126,  the  ma- 
jority of  the  court  overruled  the  decision  in  Sanderson  v.  Penn- 
■sylvania  Coal  Co.,  86  Pa.  401,  and  reached  the  conclusion  that, 

'  Van  Winkle  v.  American  Steam-Boiler  Ins.  Co.  (N.  J.  Feb.  25,  1890)  19  Atl. 
Rep.  473. 

^Pottstoion  Gas  Co.  v.  Murphy,  39  Pa.  257;  Beckley  v.  SkroTi,  19  Mo.  App. 
75;  Chapman  v.  Rochester,  110  N.  Y.  273,  1  L.  R.  A.  296;  Perrine  v.  Tay- 
lor, 43  N.  J.  Eq.  128;  Avans  v.  Wilmington  &  W.  R.  Co.  96  N.  C.  45. 

^Citing  Chauiftler  v.  Robinson,  4  Exch.  163;  larry  v.  Ashton,  L.  R.  1  Q.  B. 
Div.  314;  Bower  v.  Peate,  L.  R,  1  Q.  B.  Div.  331. 


Chap.  IX.]  PRESUMPTION   OF   NEGLIGENCE.  155 

where  coal  lands  were  being  operated  in  the  ordinary  manner,  one 
througli  whose  land  a  stream  of  water  passed  had  no  cause  of  ac- 
tion against  the  owners  of  a  mine,  because  the  water  had  been 
affected  in  quality  or  quantity,  tlie  mine  owner  introducing  noth- 
ing into  the  water  to  corrupt  it,  the  impurities  being  from  natural 
and  not  artificial  causes,  and  the  result  being  a  mere  personal  in- 
jury and  not  affecting  the  general  health  and  well-being  of  the 
connnunity,  and  the  stream  forming  the  natural  draitiage  of  the 
land.  But  see  Kinnaird  v.  Standard  Oil  Go.  (Ky.  Jan.  ^5,  ISUO), 
7  L.  E.  A.  451,  where  it  was  held  that  there  is  a  manifest  distinc- 
tion between  the  right  of  the  owner  of  land  to  use  the  underground 
water  upon  it  that  originates  from  percolation  and  tlie  wrong  in 
contaminating  it,  so  as  to  injure  or  destroy  the  water,  when  pass- 
ing the  adjoining  land  of  his  neighbor.' 

The  rule  of  law  also  is  well  settled  in  actions  where  the  right  of 
recovery  is  claimed  as  resting  both  on  an  imposed  obligation  and 
•on  contract,  that  when  an  injury  happens  to  a  passenger  on  a  rail- 
road by  reason  of  the  defective  condition  of  appliances,  it  is  prima 
facie  evidence,  from  which  the  jury  may  infer  negligence.'' 

Other  examples  are  where  a  railway  embankment  sinks  away ;' 
where  injury  is  caused  by  car  being  thrown  off  the  track ;  *  by  a 
•collision  of  trains*  or  street  cars ; '  by  the  destruction  of  a  rail- 
way bridge  by  a  storm ;  ^  by  accident ;  *  by  breaking  down  of  a 
bed  in  sleeping  car;'  by  explosion  of  a  boiler; "*  by  the  breaking 

'  See  also  Ottawa  Gas  Light  C.  Co.  v.  Qraliava,  28  111.  74;  Pottstown  Oas  Co.  v. 
Murphy,  39  Pa.  257;  Columbus  Oas  Co.  v.  Freeland,  12  Ohio  St.  392. 

^Baltimore  &  0.  R.  Co.  v.  Noell,  32  Gratt.  394;  Sawyer  v.  Hannibal  d:  St. 
J.  R.  Co.  37  Mo.  240;  Curtis  v.  Rochester  &  S.  R.  Go.  18  N.  Y.  534. 

^Great  Western  R.  Co.  v.  Braid,  1  Moore,  P.  C.  (N.  S.)  101;  Philadelphia  & 
R.  R.  Co.  V.  Anderson,  94  Pa.  351. 

^Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Williams,  74  Ind.  462  ;  Cleteland,  C.  C.  & 
I.  R.  Co.  V.  Neimll,  104  Ind.  264,  1  West.  Rep.  890;  Dawson  v.  Man- 
chester, S.  &  L.  R.  Go.  7  Hurl.  &  N.  1037;  Feital  v.  Middlesex  R.  Co.  109 
Mass.  398;  Tuttle  v.  Chicago,  R.  J.  &  P.  R.  Co.  48  Iowa,  230;  Carpiie  v. 
London  &  B.  R.  Co.  5  Q.  B.  747. 

''New  Orleans.  J.  &  G.  N.  R.  Co.  v.  Allbritton,  38  Miss.  242:  Seybolt  v.  New 
York,  L.  E.  &  W.  R.  Co.  95  N.  Y.  562;  Iron  R.  Co.  v.  Mowery,  36  Ohio 
St.  418;  Skinner  v.  London,  B.  &  S.  O.  R.  Co.  5  Exch.  787. 

^Smith  V.  St.  Paul  C.  R.  Co.  32  Minn.  1. 

•'Kansas  P.  R.  Co.  v.  Miller,  2  Colo.  442. 

^Bedford,  S.  0.  &  B.  R.  Co.  v.  Rainbolt,  99  Ind.  551. 

^Cleveland,  C.  C.  &  L  R.  Co.  v.  Walrath,  38  Oliio  St.  461. 
'^oThe  Reliance,  4  Woods,  C.  C.  420;  Robinson  v.  New  York  C.  &  U.  R.  R.  Co. 
20  Blatchf .  338. 


156  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

down  of  a  coach ;'  by  negligent  driving ;'  by  tlie  upsetting  of  a 
stage  coach'  or  of  a  sleigh/ 

In  all  these  cases  there  exists  prima  facie  liability  as  it  has 
been  shown  to  exist  against  the  owner  of  a  building  from  th& 
window  of  which  a  barrel  falls  upon  a  traveler  on  the  road ;'  and 
against  a  railway  company  for  injury  from  a  brick  shaken  out 
of  a  long-existing  defective  abutment  to  a  bridge;*  or  against 
the  owner  of  a  burned  building  left  standing  in  dangerous  condi- 
tion until  it  falls/ 

So  seamen  who  attempt  to  adjust  hatch  covers,  each  of  which 
weighs  about  70  pounds,  and  is  slippery  from  grease,  are  prima 
facie  guilty  of  want  of  proper  care  in  attempting  to  handle  them 
one  man  to  each,  especially  when  no  warning  is  given  to  persons 
beneath/  And  an  electric  company  is  responsible  for  damage  to 
a  policeman  on  duty  at  a  bank,  by  explosion  of  insufficient  elec- 
tric apparatus  which  it  was  working  in  the  building/  And  so- 
a  licensee  of  land  is  presumed  to  be  liable  for  want  of  care  in  per- 
mitting water  to  reach  stored  lime  and  burn  a  building  thereon/* 

^Toledo,  W.  &  W.  B.  Co.  v.  Beggs,  85  111.  80;  Christie  v.  Griggs,  2  Camp.  79^ 

Ware  v.  Oay,  11  Pick.  106. 
^Stokes  V.  Saltonstall,  38  U.  S.  13  Pet.  181,  10  L.  ed.  115. 
^Wall  V.  Livezay,  6  Colo.  465;  B&yce  v.  California  Stage  Co.  25  Cal.  460. 
*Ryan  v.  Gilmer,  2  Mont.  517. 
^Byrne  v.  BoadU,  3  Hurl.  &  C.  721. 

^Kearney  v.  London,  B.  &  S.  C.  B.  Co.  L.  R.  6  Q.  B.  759. 
"•Anderson  v.  East,  117  Ind.  126,  2  L.  R.  A.  712. 
« Crawford  v.  The  Wells  City,  38  Fed.  Rep.  47. 
^  Gates  V.  Southwestern  Brush  E.  L.  &  P.  Co.  40  La.  Ann.  467. 
^^Licking  Boiling  Mill  Co.  v.  Fischer  (Ky.  Jan.  26,  1889)  10  Ky.  L.  Rep.  763. 

11  S.  W.  Rep.  305. 


CHAPTER  X. 

ORIGIN  AND  DEFINITION  OF  EASEMENTS  AND  SERVITUDES. 

Sec.  17.     Easements  and  Servitudes, 

a.  Defined. 

b.  How  Created. 

1.  By  Express  Grant. 

2.  By  Implied  Grant. 

3.  By  Prescription  :  Light,  Air. 

4.  By  License;  Estoppel. 

5.  By  Custom. 

Section  17. — Easements  and  Servitudes. 
a.  Defined. 

"When  one  in  the  exercise  of  an  easement  in  land  causes  injury 
or  inconvenience  to  the  owner  of  the  servient  tenement,  in  order 
to  recover  for  such  injury,  negligence  in  the  use  of  the  easement 
or  an  unlawful  extension  of  the  use  must  be  shown.  And  such 
negligent  or  excessive  use  occurring,  the  owner  of  the  tenement 
may  stop  the  improper  or  excessive  use,  and  if  in  doing  this  with 
care  on  his  part  the  use  or  easement  itself  is  interrupted  or  sus- 
pended, this  will  give  no  cause  of  action;  but  such  interruption 
may  be  continued  until  the  negligent  or  unlawful  use,  having 
been  severed  from  the  lawful,  can  be  separately  stopped.'  So 
where  one  in  the  exercise  of  an  easement  is  interrupted  by  the 
negligent  or  intentional  act  of  the  owner  of  the  soil,  he  may, 
taking  due  care,  remove  the  obstruction;^  and,  if  the  interruption 
is  by  a  stranger,  as  he  cannot  sue  the  owner  of  the  land  for  negli- 
gence in  permitting  the  interruption  to  continue,  he  must  himself 
remove  the  cause.^ 

In  examining  the  law  of  easements  and  servitudes,  it  will  be 
seen  under  what  circumstances  negligence  in  the  exercise  of  the 
right  and  want  of  care  in  preserving  the  easement  by  the  ])erson 

^Elliott  V.  Eheit,  5  Rich.  L.  405,  431. 

^ Adams  v,  Barney,  25  Vt.  325. 

^Saxby  v.  Manchester,  S.  &  L.  B.  Co.  38  L.  J.  N.  S.  C.  P.  153. 


158  IMPOSED    DUTIES,    PEKSONAL.  [Part    1. 

on  whom  this  duty  rests. will  create  liability.  Generally  it  may 
be  said  that  the  person  who  has  the  benefit  will  be  under  obliga- 
tions to  maintain  the  easement.* 

In  this  division  of  the  law  the  service  or  convenience  which  one 
neio;hbor  has  of  another  by  charter  or  prescription,  without  profit, 
is  called  an  easement."  It  is  the  right  which  one  man  has  to  use 
the  land  of  another  for  a  specific  purpose;^  a  liberty,  privilege  or 
advantage  in  land,  without  profit,  distinct  from  an  ownership  in 
the  soil.^  In  the  civil  law,  a  servitude  is  the  subjection  of  one  es- 
tate to  another,  or  to  a  person. 

The  essential  qualities  of  easements  are  these :  they  are  incor- 
poreal ;  they  are  imposed  upon  corporeal  property  ;  they  confer  no 
right  to  participation  in  profits  arising  from  such  property  ;  there 
must  be  two  distinct  tenements,  the  dominant,  to  which  the  right 
belongs,  and  the  servient,  upon  which  the  obligation  rests.* 

The  rights  of  any  party  having  an  easement  in  the  land  of  an- 
other are  measured  and  defined  by  the  purpose  and  character  of 
that  easement ;  and  so  far  as  is  consistent  therewith  the  right  to 
use  the  land  remains  in  the  owner  of  the  fee."  Ice  formed  within 
the  boundaries  of  a  railroad  belongs  to  the  owner  of  the  land^ 
and  the  railroad  has  no  right  thereto.'' 

An  affirmative  easement  is  such  a  right  to  do  acts  upon  anoth- 
er's land  as  amount  to  a  positive  injury  to  the  land  ;  as  a  right  of 
way;  to  turn  water  upon  it,  etc.  A  negative  easement  is  such  a 
right  as  is,  in  its  exercise,  consequentially  injurious, — as  forbidding 
a  thing  to  be  done,  like  obstructing  a  light.* 

An  ajDparent  or  continuous  easement  depends  upon  some  artifi- 

^ Atkins  V.  Bordman,  2  Met.  457;  Doane  v.  Badger,  12  Mass.  65,  70;  Wynkoop 
V.  Burger,  12  Johns.  232;  Osborn  v.  Wise,  7  Car.  &  P.  761. 

^Post  V.  Pearsall,  22  Wend.  438;  Mllis  v.  Munson,  108  N.  Y.  453,  11  Cent. 
Rep.  449. 

^Jackson  v.  TrulUnger,  9  Or.  397. 

^Riontington  v.  Asher,  96  N.  Y.  Q()^;  Jamaica  Pond  Aqueduct  Corp.  v.  Chand- 
ler, 9  Allen,  165. 

^Pierce  v.  Keator,  70  N.  Y.  421.  See  Parsons  v.  Johnson,  68  N.  Y.  65;  Col- 
umbia College  v.  Lynch,  70  N.  Y.  447,  448;  Tardy  v.  Creasy,  81  Va.  556, 
557;  Anderson,  Law  Diet.  391;  Garrison  v.  Rudd,  19  111.  558. 

^Atkins  V.  Bordman,  2  Met.  457;  Phipps  v.  Johnson,  99  Mass.  26;  Locks  & 
Canals  v.  Nashua  &  L.  B.  Co.  104  Mass.  11. 

''Julien  V.  Woodsmall,  82  Ind.  568. 

^Cohnnbia  College  v.  Lynch.  70  N.  Y.  448  ;  2  Waslib.  Real  Prop.  26,  56- 
60,  82-85,  453-456. 


Chap.  X.]       EASEMENTS    CKEATED    BY    EXPRESS    GRANT,  15^ 

cial  structure  upon,  or  natural  formation  of,  the  servient  tenement, 
obvious  and  permanent,  which  constitutes  tlie  easement  or  is  the 
means  of  enjoying  it,  as  the  bed  of  a  runnino:  stream,  an  over- 
hanging roof.  An  easement  of  necessity  is  a  privilege  without 
which  the  dominant  owner  could  not  carry  on  his  trade  or  enjoy 
some  other  property  right.  An  easement  of  convenience  enables 
such  owner  to  prosecute  his  business,  or  to  enjoy  some  right  in  real 
property,  with  increase  of  facilities  or  comfort.' 

Private  easements  exist  in  favor  of  one  or  more  individuals.  A 
right  of  way  is  in  gross  and  personal  to  the  grantee,  beeanse  it  is 
not  appurtenant  to  other  premises.'  A  grant  in  gross  is  never 
presumed  when  it  can  fairly  be  construed  as  appurtenant  to  some 
other  estate.'      A  public  easement  is  in  favor  oi  the  public  geuer- 

ally/ 

There  is  also  a  secondary  or  appendant  or  appurtenant  easement 
to  and  upon  another  easement,  in  that  it  is  convenient  or  necessary 
to  the  full  enjoyment  of  the  latter.  Thus,  the  grant  of  a  right  to 
take  water  from  a  well  and  to  hang  clothes  in  defendant's  yard 
carries  with  it  the  right  of  a  reasonable  passageway  to  and  from 
the  yard  f  so  a  right  to  enter  to  repair  a  way,*  or  to  take  soil 
from  the  land  to  repair  an  aqueduct;'  so  a  right  of  way  to  an 
estate  in  which  one  has  a  hunting  or  fishing  right,  or  the  right 
of  pasturage  or  drawing  water.* 

b.  How  Created, 

1.  By  Express  Grant. 

The  law  of  easements  and  servitudes  relates  exclusively  to  land, 
and  cannot  be  applied  to  a  chattel;  but  the  owner  of  a  building 
disassociated  in  title  from  the  land  whereon  it  stands  may,  when 

'Anderson,  Law  Diet.  891;  2  Bl.  Com.  36;  Snujles  v.  Hastings,  22  N.  Y.  217;, 

Brigham  v.  Smith,  4  Gray,  297. 
^Wagner  v.  Eanna,  38  Cal.  111. 
^Winston  v.  Johnson,  42  Minn.  398. 
^Anderson,  Law  Diet.  Easements. 
^Bean  v.  Coleman,  44  N.  H.  539. 
^McMillen  v.  Gronin,  57  How.  Pr.  53 
"iThoinpson  v.  Uglow,  4  Or.  369. 
^Alexander  v.  Tolkston  Club,  110  111.  65. 


160  IMPOSED    DUTIES,  PERSONAL.  [Part  I. 

he  sells  part  of  it,  reserve  rights  in  the  part  sold,  for  the  benefit 
of  the  part  retained,  which  the  law  will  maintain  and  protect ; 
and  such  rights  may,  by  the  contract  of  sale,  be  attached  to  the 
building  in  such  manner  that  tliey  will  pass  with  the  building  to 
its  successive  owners.'  It  is  competent  for  a  grantor  in  a  deed 
to  create  a  right  of  way  over  the  land  conveyed,  in  his  own  favor, 
either  appurtenant  or  in  gross,  by  a  reservation  inserted  in  his 
•deed  ;  and  it  may  be  done,  though  in  terms  it  be  an  exception.* 

When  there  is  in  a  deed  no  declaration  of  the  intention  of  the 
parties  in  regard  to  the  nature  of  a  way  granted,  it  will  be  de- 
termined by  its  relation  to  other  estates  of  the  grantor,  or  its  want 
■of  such  relation.  Resort  may  also  be  had,  in  such  a  case,  to  other 
circumstances  surrounding  the  transaction,  for  the  purpose  of 
ascertaining  the  intent  and  the  effect  to  be  given  the  instrument.' 

Where  on  the  sale  of  parts  of  a  subdivision,  the  various  deeds 
contain  restrictions  of  the  use,  which  it  appears,  by  any  evidence, 
were  inserted  for  the  enhancement  of  the  value  of  the  other  por- 
tions of  the  subdivision,  a  servitude  will  be  created  in  favor  of 
such  portions  upon  the  lots  so  sold,  enforceable  even  against  pur- 
chasers who  have  only  constructive  notice  of  the  restrictions." 
A  right  of  way  which  is  located  somewhat  ambiguously  "  on  or 
near  the  line  "  between  parties,  to  a  road  which  is  some  rods  dis- 
tant from  such  line,  necessarily  must  diverge  that  distance. 
Where  the  servient  owner  has  by  his  own  voluntary  act  fixed  one 
■end  of  the  way  by  a  fence  between  the  road  and  a  point  supposed 
to  be,  but  which  is  not,  on  such  line,  the  other  party  is  entitled 
to  have  the  way  run  from  the  true  line  by  the  shortest  practicable 
course  to  the  point  thus  fixed.^  A  grant  of  a  right  of  way,  over 
land  does  not  convey  the  soil,  or  any  corjDoreal  interest  in  it,  and 
it  necessarily  follows  that  such  an  owner  cannot  prevent  even  a 
trespasser  from  using  the  land,  if  his  use  does  not  impede  the 
•exercise  of  the  right  of  passage.     In  other  words,  an  owner  whose 

^Mayo  V.  ]Sfewhoff(N.  J.  May  23,  1890)  19  Atl.  Eep.  837. 

s  3  Winston  v.  Johnson,  42  Minn.  398. 

^Tohey  v.   Moore,  130  Mass.  448;  Phmnix  Ins.  Co.  v.  Continental  Ins.  Co.  87 
N.Y.  400;  Uerrick  v.  Marshall,  66  Me.  435;  Kramer  v.  Carter,  136  Mass 
504;  Teck  v.  Corncay,    119  Mass.  546;   Tallmadge  v.  East  River  Bank,  26 
N.Y.  105;  Brew  V.  Van  Deman,  6  Heisk.   4b3;  Ilubbell -^.Warren,  8  Al- 
len, 173. 

^Fritschie  v.  Fritschie  (Wis.  June  21,  1890)  45  N.W.  Rep.  1088- 


Chap.  X.]  EASEMENTS    CREATED  BY    EXPRESS    GRANT.  161 

land  is  burdened  with  a  right  of  way  has  all  the  rights  and  bcne- 
iits  of  the  soil  consistent  M'ith  the  reasonable  use  of  the  \vaj.' 
The  title  to  the  fee  in  a  strip  of  land  excepted  and  reserved  for 
an  alley  across  the  end  of  a  lot  conveyed  vests  in  the  grantee  sub- 
ject to  the  easement."  There  are  many  cases  in  which  the  con- 
veyance has  been  made  of  lots  npon  a  plan  showing  a  way,  or 
where  in  the  description  the  lot  was  bounded  npon  a  way  lo- 
cated upon  the  grantor's  own  land,  and  it  was  ruled  that  the  grant 
•carried  the  way.  These  cases  rest  upon  the  principle  that,  by  a 
reference  to  the  plan,  that  becomes  a  part  of  the  description,  and 
carries  the  right  of  way  by  an  express  grant ;  or,  as  where  bounded 
upon  a  way  upon  the  grantor's  land,  it  is  such  a  representation  of 
the  existence  of  a  way  material  to  the  value  of  the  land,  as  to 
•estop  the  grantor  from  denying  its  truth.*  So  where  the  prem- 
ises are  conveyed  by  some  distinguishing  name,  without  any  de- 
scription by  metes  and  bounds,  then  all  parts  or  appurtenances 
properly  included  in  the  descriptive  name  will  jDass."  Where 
lands  are  conveyed  as  abutting  on  a  proposed  street,  right  to  the 
use  thereof  arises  by  implication.  Whether  such  private  use 
merges  in  the  public  right  when  the  street  becomes  public  is  matter 
of  law.*  The  adjacent  street  is  regarded  as  an  easement  passing 
with  the  property  on  conveyance,  or  as  an  appurtenance  necessary 
to  its  enjoyment."  A  purchaser  of  land  sold  by  reference  to  a 
plan  bounding  the  land  on  a  street,  obtains  a  right  of  way  in  the 
street,  which  neither  the  grantor  nor  his  successors  can  afterwards 
impair ;  but  where  no  reference  is  made  to  a  plan,  he  cannot  claim 
under  such  rule.^  One  claiming  an  easement  on  the  ground  that 
the  lands  were  conveyed  as  bounded  on  a  street  must  rest  his 
claim  on  his  own  title  deed,  and  not  on  the  deed  of  another 
through  which  he  has  not  derived  his  title.*     Nor  will  dotted 

^Jamaica  Pond  Aqueduct  Corp.  v.  Chandler,  9  Allen,  159,  163;  RicJuirdson 
V.  Palmer,  38  N.  H.  212,  220;  Welch  v.  Wilcox,  101  Mass.  162,  164,  100 
Am.  Dec.  113,  note,  115,  118;  Goddard,  Easem.  4;  Low  v.  Streeter  (N.  H. 
March  14,  1890)  9  L.  R.  A.  271. 

*Winston  v.  Johnson,  42  Minn.  398. 

^Bartlettv.  Bangor,  67  Me.  460;  Fox  v.  U7iion  Sugar  Refinery,  109  Mass. 
292;  StillweU  v.  Foster,  80  Me.  333,  6  New  Eug.'Rep.  649. 

\Stillwell  V.  Foster,  80  Me.  333,  6  New  Eng.  Rep.  649. 

'^Dodge  v.  Pennsylvania  R.  Co.  43  N.  J.  Eq.  351,  10  Cent.  Rep.  655. 

Wit  V.  Ereiter,  110  Pa.  370,  1  Cent.  Rep.  387;  Spackinaii  v.  Stcidel,  88  Pa. 
453. 

^  ^Dorman  v.  Bates  Mfg.  Co.  82  Me.  438. 
11 


162  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

lines  on  a  plat  of  land  sold,  without  any  description  to  indicate 
plainly  and  unambiguously  what  they  are  intended  for,  establish 
a  dedication  of  a  way  across  such  lands,  where  it  is  not  a  way  of 
necessity  and  there  is  no  understanding  or  agreement  in  relation 
to  the  easement.' 

An  owner  of  lands  who  divides  them  into  lots,  and  files  a  map 
thereof  designating  a  street  laid  down  as  a  proposed  public  street 
upon  the  commissioner's  map,  but  which  has  not  been  formally 
opened,  and  conveys  the  lots  with  reference  to  such  street,  thereby 
merely  recognizes  the  street  to  be  opened  in  the  future,  and  does 
not  grant  a  private  way  by  implication.''  Where  each  of  two  ad- 
joining land  owners  conveys  to  the  other  the  land  between  hi& 
own  building  and  the  division  line  between  their  lands,  "  to  be 
used  as  a  common  passway  for  our  mutual  benefit,  and  for  no  other 
purpose,"  neither  has  any  interest  in  the  land  he  has  conveyed, 
except  a  right  of  way,  and  the  grantor  cannot  complain  of  ob- 
structions therein  which  do  not  impede  him  in  its  reasonable  use 
as  a  passway,  although  created  by  a  third  person  having  a  mere 
right  of  way  over  such  passway.' 

In  the  case  of  United  States  v.  Appleton,  1  Sumn.  492,  it  was 
said :  "  It  is  observable  that  in  this  case  reliance  is  placed  on  the 
language  '  with  all  the  ways,'  etc.  But  this  is  wholly  unnecessary, 
for  whatever  are  properly  incidents  and  appurtenances  of  the 
grant  will  pass  without  the  word  '  appurtenances '  by  mere  opera- 
tion of  law."  *  But  general  words  in  a  conveyance  passing  "  all 
ways"  with  the  land  conveyed,  occupied  or  enjoyed,  will  not 
convey  to  the  vendee  a  way  which  originated  in  a  user  by  the 
vendor  of  his  own  land  for  his  own  convenience  and  which  had  no 
existence  prior  to  the  unity  of  possession  of  the  vendor.* 

The  application  of  the  rule  must  depend  upon  the  nature,  ar- 
rangement and  use  of  the  estate ;  the  relation  of  the  parts  to  each 
other,  and  the  existing  degree  of  necessity,  for  giving  such  con- 
struction to  the  grant  as  will  give  effect  to  what  may  be  supposed 

^Lippincott  v.  Harvey  (Md.  June  20,  1890)  19  Atl.  Rep.  1041. 

^Darker  v.  Beck  (Sup.  Ct.  May  23,  1890)  32  N.  Y.  S.  R.  193. 

^Low  V.  Streeter  (N.  H.  March  14,  1890)  9  L.  R.  A.  271. 

*See  Morgan  v.  Mason,  20  Ohio,  401;  Morrison  v.  King,  62  111.  30;  Newman 

V.  Nellis,  97  N.  Y.  285. 
^Barnett  v.  Flummer  (Pa.  Feb.  7,  1887)  6  Cent.  Rep.  650. 


Chap.  X.]  EASEMENTS  CREATED  BY   IMPLIED   GRANT.  163 

to  have  been,  considering  the  manner  of  the  use,  the  reasonable 
intendment  of  the  parties.  Thus,  the  words  "  the  right  of  pass- 
age "  are  not  words  of  art,  and  have  no  well-settled  meaning  in 
the  law;  their  import,  therefore,  is  a  question  of  construction,  and 
depends  in  each  particular  case  upon  the  intent  of  the  parties  as 
expressed  in  the  language  of  the  grant,  explained  and  illustrated 
by  the  locality  and  subject  matter  to  which  they  apply.*  It  is  com- 
petent to  prove  by  parol  the  acts  of  the  parties  at  and  subsequent 
to  the  date  of  the  contract,  as  a  means  of  showing  their  own  un- 
derstanding of  its  terras.^  The  acts,  declarations  and  statements 
of  the  parties  to  the  grant  are  facts  admissible  in  evidence  to  show 
the  contemporaneous  construction  put  upon  the  instrument  by  the 
parties.^  But  a  mere  license  to  tenants,  even  if  the  owner  had 
knowledge  of  the  user,  creates  no  easement ;  an  easement  cannot 
be  made  by  a  tenant.* 

2.  By  Implied  Grant. 

Easements  may  pass  or  a  servitude  be  imposed  by  implication  of 
law,  although  not  expressly  named  in  the  grant.  Three  things 
are  essential  to  the  creation  of  an  easement  in  the  latter  way :  (1) 
a  separation  of  the  title ;  (2)  that  before  the  separation  takes  place, 
the  use  which  gives  rise  to  the  easement  shall  have  been  so  long 
continued  and  so  obvious  as  to  show  that  it  was  meant  to  be  per- 
manent ;  and  (3)  that  the  easement  shall  be,  in  a  qualified  sense, 
reasonably  necessary  to  the  beneficial  enjoyment  of  the  land 
granted  or  retained.^ 

Where  during  the  unity  of  title  an  apparently  permanent  and 
obvious  servitude  is  imposed  on  one  part  of  the  estate  in  favor  of 

^Cochnan  v.  Evans,  1  Allen,  446;  Webber  v.  Eastern  R.  Co.  2  Met.  151;  Phil- 
lips V.  Bowers,  7  Gray,  24;  Murdoch  v.  Chapman,  9  Gray,  156;  Knight  v. 
New  England  Worsted  Co.  2  Cush.  271. 

^Knight  v.  New  England  Worsted  Co.  2  Cush.  271. 

^Clioate  V.  Burnham,  7  Pick.  274;  Owen  v.  Barthohmeio,  9  Pick.  520;  Stone 
V.  Clark,  1  Met.  378;  Mann  v.  Dunham,  5  Gray,  511;  Hoiourd  v.  Fessen- 
den,  14  Allen,  124;  Stevenson  v.  Erskine,  99  Mass.  367;  Morris  v.  French, 
106  Mass.  826;  Lovejoy  v,  Lovett,  124  Mass.  270. 

^Illinois  Ins.  Co.  v.  Littlefield,  67  111.  368;  Gentleman  v.  Soule,  32  111.  272; 
Warren  v.  Blake,  54  Me.  276;  Kelly  v.  Dunning,  43  N.  J.  Eq.  62,  8  Cent. 
Rep.  600. 

'^Cifuik  V.  Klekr,  117  111.  643,  5  West.  Rep.  490;  Bennett's  Goddard,  Easem. 
122;  Kelly  v.  Dunning,  43  N.  J.  Eq.  62,  8  Cent.  Rep.  600. 


164  IMPOSED   DUTIES,  PERSONAL.  [Part   L 

another,  which  at  the  time  of  the  severance  is  in  use,  and  is  rea- 
sonably necessary  for  the  fair  enjoyment  of  tlie  other,  then  upon 
a  severance  of  such  ownership,  whether  by  voluntary  alienation  or 
by  judicial  proceedings,  there  arises  by  implication  of  law  a  grant 
or  reservation  of  the  right  to  continue  such  use.  In  such  case, 
the  law  implies  that  with  the  grant  of  the  one,  an  easement  is  also 
granted  or  reserved,  as  the  case  may  be,  in  the  other,  subjecting  it 
to  the  burden  of  all  such  visible  uses  and  incidents  as  are  reason- 
ably necessary  to  the  enjoyment  of  the  dominant  heritage,  in  sub- 
stantially the  same  condition  in  which  it  appeared  and  was  used 
when  the  grant  was  made.' 

Washburn,  in  his  work  on  Easements,  says  (p.  71),  quoting  from 
the  note  to  Pearson  v.  Sj)encer,  1  Best  <fc  S.  571:  "It  may  be  con- 
sidered as  settled  in  the  United  States  that,  on  the  conveyance  of 
one  of  several  parcels  of  land  belonging  to  the  same  owner,  there 
is  an  implied  grant  or  reservation,  as  the  case  may  be,  of  all  appar- 
ent and  continuous  easements,  or  incidents  of  property,  which  have 
been  created  or  used  by  him  during  the  unity  of  possession,  though 
they  could  then  have  had  no  legal  existence  apart  from  the  gen- 
eral ownership."  When  a  building  is  so  constructed  that  one  part 
of  it  is  made  tributary  to  the  other,  on  a  sale  of  that  part  of  it 
which  is  tributary  to  the  other  the  natural  presumption  will  be,  in 
the  absence  of  an  express  agreement  to  the  contrary,  that  the  pur- 
chaser takes  the  part  he  buys  subject  to  such  use  by  the  other  part 
as  the  mechanical  arrangement  of  the  building  imposes."  Thus 
the  use  of  stairways  in  a  building  erected  by  several  owners  of 
land  as  a  single  structure,  ujjon  a  single  plan  and  under  a  single 
contract,  no  matter  whether  the  land  was  then  partitioned  or  not, 
cannot  be  denied  by  the  owners  of  that  part  which  includes  the 
stairways  to  the  owner  of  another  part,  the  upper  floors  of  which 
can  be  reached  in  no  other  way.'  And  when  the  owner  of  an 
entire  estate  makes  one  part  of  it  visibly  dependent  for  the  means 
of  access  upon  another,  and  creates  a  way  for  its  benefit  over  the 
other,  and  then  grants  the  dependent  part,  the  other  part  becomes 

^Lampman  v.  Milks,  21  N.  Y.  505;  Kieffer  v.  Imhoff,  26  Pa.  438;  Pennsyl- 
vania R.  Co.  V.  Jones,  50  Pa.  417;  Phillips  v.  Phillips,  48  Pa.  178;  McCarty 
V.  Kitchenman,  47  Pa.  243;  Washb.  Easera.  56,  619. 

^Mayo  V.  Mw7toff{N.  J.  May  22,  1890)  19  Atl.  Rep.  837. 

^Pkrce  V.  Cleland,  133  Pa.  189,  7  L.  R.  A.  752. 


Chap.  X.]  EASEMENTS  CREATED   BY    IMPLIED    GRANT.  105 

subservient  thereto,  and  the  way  constitutes  an  easement  appurte- 
nant to  the  estate  granted,  and  passes  to  the  grantee  as  accessorial 
to  the  beneficial  use  and  enjoyment  of  the  granted  premises.  An 
easement  in  the  use  of  a  stairway  passes  as  appurtenant  to  part  of 
a  three-story  building  conveyed  by  metes  and  bounds,  including  a 
hall  on  the  second  floor  into  which  offices  open,  connected  with 
the  landing  of  a  stairway  leading  from  the  street  through  a  room 
of  the  first  story,  where  the  building  covers  the  whole  lot,  and  the 
.  only  mode  of  access  to  the  rooms  sold  is  by  the  use  of  such  stair- 
way.' 

Where  the  owner  of  two  tenements,  or  of  an  entire  estate,  has 
arranged  and  adapted  them  so  that  one  tenement  or  one  portion 
of  the  estate  derives  a  benefit  and  advantage  from  the  other,  of  a 
permanent,  open  and  visible  character,  and  sells  the  same,  a  pur- 
chaser takes  the  tenement  or  portion  sold  with  all  the  benefits  and 
burdens  which  appear  at  the  time  of  sale  to  belong  to  it.  Thus  if 
an  alley  was  an  important  consideration  with  the  purchaser  of  a 
lot  abutting  on  it,  the  arrangement  and  use  of  the  alley  for  the 
accommodation  of  the  lot,  and  selling  the  lot  with  the  apparent 
appurtenance  of  the  alley  attached,  are  alone  sufficient  to  give  to 
the  grantee  the  use  of  the  alley,  when  taken  in  connection  with 
subsequent  sales  made  subject  to  the  alleywa3\'' 

It  was  said  by  Chancellor  Kent :  "  Some  things  will  pass  by 
the  conveyance  of  land  as  incidents  appendant  or  appurtenant 
thereto.  This  is  the  case  with  the  right  of  way,  or  other  easement, 
appurtenant  to  land,  and  if  a  house  or  store  be  conveyed  every- 
thing passes  which  belongs  to  or  is  in  use  for  it  as  an  incident  or 
appurtenance."  ^  When  an  easement,  consisting  of  the  right  to  take 
water  from  a  spring  on  the  land  of  another,  has  become  api^urte- 
nant  to  an  estate,  either  by  express  or  implied  grant,  or  by  pre- 
scription, a  conveyance  of  that  estate  will  carry  with  it  such  ease- 
ment, whether  mentioned  in  the  deed  or  not.* 

Where  the  owner  of  two  heritages,  or  of  one  heritage  consist- 
ing of  several  parts,  sells  one  of  them  without  making  mention 

^National  Exch.  Bank  v.  Cunningham,  46  Ohio  St.  575. 

^Cihak  V.  Klekr,  117  111.  643,  5  West.  Rep.  490. 

s  4  Kent,  Com.  467. 

*Donty  V.  Dunning,  78  Me.  381,  3  New  Eng.  Rep.  41. 


166  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

of  those  incidental  advantages  or  burdens  of  one  in  respect  to  the 
other,  there  is  in  the  silence  of  the  parties  an  implied  understand- 
ing and  agreement  that  these  apparent  and  continuous  advantages 
and  burdens  shall  continue  as  before  the  separation  of  title,'  the 
underlying  principle  in  such  cases  being  that,  included  in  the  grant 
of  the  principal,  are  all  such  privileges  and  appurtenances  as  are 
obviously  incident  and  reasonably  necessary  to  the  fair  enjoyment 
of  the  thing  granted,  substantially  in  the  condition  in  which  it  is 
enjoyed  by  the  grantor,  unless  the  contrary  is  provided.  Where 
the  quasi  easement  claimed  by  the  grantee  is  not  really  necessary 
for  the  enjoyment  of  the  estate  granted,  but  is  highly  convenient 
and  beneficial  thereto,  if  it  is  continuous  and  apparent  at  the  time 
of  the  grant,  it  passes  to  the  purchaser  with  his  estate ;  otherwise 
not*  This  test  has  been  stated :  whether  or  not  the  party 
claiming  the  easement  can  do  without  it  by  constructing  some- 
thing to  take  the  place  of  it  at  a  reasonable  expense. 
"Where,  by  cutting  out  a  new  road  a  distance  of  100  yards 
through  open  woods  and  causewaying  a  small  boggy  branch,  any 
necessity  to  use  a  road  across  the  land  of  another,  who  gave  warn- 
ing not  to  do  so,  would  have  been  obviated,  no  such  necessity  ex- 
isted as  to  furnish  "  a  legal  cause  or  good  excuse,"  under  Ala. 
Code,  §  3874.'  The  purchaser  of  a  city  lot  75  feet  deep,  with 
a  frontage  of  25  on  a  street,  is  not  entitled  to  a  way  by  necessity 
to  the  rear  of  his  lot  over  the  adjacent  land  of  his  grantor."  If 
he  can  at  a  reasonable  expense  secure  his  access  over  his  own 

^Morrison  V.  King,  62  111.  30;  Ingalsv.  Palmondon,  75  111.  118;  Haclden  v. 
Slioutz,  15  111.581;  Oerberv.  Orabel,  16  111.  223;  Thomas  v.  Wiggers,  41 
111.  471;  Phillips  v.  Phillips,  48  Pa.  178;  McCarty  v.  Kitchenman,  47  Pa. 
239;  Cannon  \ .  Boyd,  73  Pa.  179;  Durelv.  Boisblanc,  1  La.  Ann.  407; 
Lnrnpmanx.  Milks,  21  N.  Y.  505;  Simmons  y.  Cloonan,  81  N.  Y.  557; 
Watts  V.  Kelson,  L.  R.  6  Ch.  App.  166;  Dunklee  v.  Wilton  B.  Go.  24  N.  H. 
489;  Janes  v.  Jenkins,  34  Md.  1;  Sanderlin  v.  Baxter,  76  Va.  299;  Elliott 
V.  Ehett,  5  Rich.  L.  405,  37  Am.  Dec.  750,  and  note,  751-768;  OoodallM. 
Godfrey,  53  Vt.  219;  Gavey.  Grafts,  53  Cal.  138;  Brown  v.  Berry,  6  Coldw, 
98;  Washb.  Easem.  *50  et  seq.;  Gale,  Easem.  (4th  ed.)  85  ;  Goddard, 
Easem.  (Bennett's  ed.)  119-124;  Thompson  v.  Miner,  30  Iowa,  ZSQ;Kieffer 
V.  Imhoff,  26  Pa.  438;  Thayer  v.  Payne,  2  Cush.  231;  Patterson  v. 
Arthurs,  9  Watts,  154:  Huttemeier  v.  Albro,  18  N.  Y.  50;  Seymour  v. 
Leicis,  13  N.  J.  Eq.  439,  78  Am.  Dec.  108,  120,  and  noU;  Henry  v.  Koch, 
80  Ky.  391,  44  Am.  Rep.  484;  Blake  v.  Ham,  50  Me.  311;  Dolliffy.  Bos- 
ton &  M.  B.  Go.  68  Me.  176. 

^Cihak  V.  KUkr,  117  111.  643,  5  West.  Rep.  490. 

i  Wilson  V.  State,  87  Ala.  117. 

^Smith  V.  Oriffin  (Colo.  Apr.  25,  1890)  23  Pac.  Rep.  905. 


■Chap.  X.]  EASEMENTS    CREATED  BY    IMPLIED    GRANT.  167 

ground,  then,  the  deed  being  silent,  he  cannot  daim  the  casement 
but  if  not,  and  tlie  easement  claimed  is  necessary  to  the  beneficial 
use  of  his  property,  the  easement  passes  ;  and  this  is  based  upon 
the  doctrine  that  a  man  shall  not  derogate  from  his  grant.'  It  is 
enough  to  show  that  the  easement  passes  if  it  would  require  an 
unreasonable  amount  of  labor  and  expense  to  render  the  possible 
way  convenient,  —  that  is,  labor  and  expense  which  would  be  ex- 
cessive and  disproportionate  to  the  value  of  the  land  to  be  accommo- 
dated." A  mere  temporary  or  provisional  arrangement,  however, 
which  may  have  been  adopted  by  the  owner  for  the  more  conven- 
ient enjoyment  of  the  estate,  cannot  constitute  the  degree  of  neces- 
sity or  permanency  which  would  authorize  the  engrafting  upon  a 
deed,  by  construction,  of  a  right  to  the  enjoyment  of  something 
not  within  the  lines  described.  To  justify  such  construction,  it ' 
must  appear  from  the  disposition,  arrangement  and  use  of  the 
several  parts,  that  it  was  the  owner's  purpose,  in  adopting  the  ex- 
isting arrangement,  to  create  a  permanent  and  connnon  use,  in  the 
one  part,  for  the  benefit  of  the  other,  or  for  the  mutual  benefit  of 
both,  and  it  must  be  reasonably  inferable  from  the  existing  dispo- 
sition and  use  that  it  was  intended  to  be  continuous,  notwithstand- 
ing the  severance  of  ownership.'  If  it  appears  by  a  fair  inter- 
pretation of  the  words  of  a  grant,  in  connection  with  surrounding 
circumstances,  that  it  was  the  intention  of  the  parties  to  create  or 
reserve  a  right  in  the  nature  of  an  easement  in  the  property 
granted,  for  the  benefit  of  other  laud  of  the  grantor,  and  origin- 
ally forming,  with  the  land  conveyed,  one  parcel,  such  right  will 
be  deemed  appurtenant  to  the  land  of  the  grantor,  and  binding  on 
that  conveyed.  The  right  and  burden  thus  created  will  pass  to 
and  be  binding  on  all  subsequent  grantees  of  the  respective  par- 

'^Johnson  V.  Jordan,  2  Met.  234;  Leonard  v.  Leonard,  2  Allen,  543:  Nichols 

V.  Luce,  24  Pick.  103;  Laicton  v.  Rivers,  2  McCord,  L.  445, 13  Am.  Dec.  741, 

746,  note;  Thayer  v.  Payne,  2  Cush.  327;  Brigham  v.  Smith,  4  Gray,  297; 

Olivers.  Dickinson,   100  Mass.    114;  Pingreev.  McDujJie,  56  N.  H.  306; 

Thompson  v.  Miner,  30  Iowa,  386;  Miteliell  v.  Seipel,  53  Md.  251. 
^Pettingia  v.  Porter,  8  Allen,  1;  Kieffer  v.  Imhoff,  26  Pa.  438;  New  Ipswich 

W.  L.  Factory  v,  Batchelder,  3  N.  H.  190;  2  Washb.  Real   Prop.  (3d  ed.) 

288,  §  16. 
^Francies'  Appeal,  96  Pa.  200;  Lammott  v.  Ewers,   106  Ind.   310,  4  West. 

Rep.  553;  CowellY.  Thayer,  5  Met.  253;  Ray  v.  Fletcher,  12  Cush.  200; 

Daniels  y.  Citizens  Sav.  Inst.  127  Mass.  534;   Voter  v.  Uobbs,   69  Me.   19; 

Lacyv.  Arnett,  33  Pa.   169;  Uynds  v.  Shults,  39  Barb.  600;  March  v 

Shults,  29  N.Y.  346;  Oreen  v.  Collins,  86  N.Y.  246. 


168  IMPOSED    DUTIES,  PERSONAL,  [Part    I, 

eels  of  land."  Thus,  where  the  owners  in  fee  of  a  house  fronting 
a  street,  and  also  of  a  yard  and  premises  in  rear  of  the  house, 
conveyed  the  premises  in  the  rear,  "  together  with  the  exclusive 
use  of  the  gateway,"  which  was  described  by  dimensions,  in  its 
fee,  the  grantee  was  entitled,  not  merely  to  a  right  of  way  thi-ough 
the  gateway,  but  to  the  use  of  the  gateway  for  all  lawful  pur- 
poses." An  owner  of  lands  is  not  chargeable  with  notice  of  an 
easement  or  servitude  which  is  not  visible  or  apparent,  across  his 
lands,  by  the  fact  that  such  servitude  is  referred  to  in  subsequent 
recorded  deeds  which  do  not  constitute  a  part  of  his  chain  of 
title.'  Where  such  arrangement  is  visible,  and  apparently  de- 
signed to  be  permanent,  and  is  valuable  and  reasonably  necessary 
to  the  enjoyment  of  the  parcel  granted,  the  parties  will  be  pre- 
sumed to  have  contracted  with  reference  to  the  condition  of  the 
property  at  the  time  of  the  grant,  and  neither  "  has  a  right  to 
alter  arrangements  then  openly  existing  so  as  to  change  materially 
the  relative  value  of  the  respective  parts."  *  The  rule  above  stated 
was  applied  with  some  degree  of  liberality  in  the  notable  case  of 
Pyer  v.  Carter^  1  Hurl.  &  N.  916,  the  authority  of  which,  al- 
though denied  in  the  later  case  of  Suffield  v.  Brown,  33  L.  J.  Ch. 
249,  is,  nevertheless,  in  principle  generally  accepted  in  this 
country,  with  some  qualification  as  to  the  degree  of  necessity  re- 
quired in  order  to  authorize  the  inference  of  a  grant  or  reserva- 
tion by  implication.  In  numerous  cases  it  was  held  that  nothing 
short  of  absolute  necessity  would  authorize  such  inference.* 
Some  of  the  courts  have  by  implication  and  in  express  terms  de- 
clared that  a  mere  matter  of  convenience  was  not  suflicient  in 
itself  alone  to  create  an  easement.*      The  latest  English  case  upon 

1  Winston  v.  Johnson,  42  Minn.  398. 

meilly  V.  Booth,  L.  R.  44  Ch.  Div.  12. 

^Treadwell  v.  Inslee,  120  N.  Y.  458. 

*Curtissv.  AyrauU.Al  N.  Y.  73;  Biitterworth  v.  Crawford,  46  N.  Y.  349; 
Caxe  V.  Crafts,  53  Cal.  185;  Kelly  v.  Dunning,  43  N.  J.  Eq.  63,  8  Cent. 
Rep.  600;  Lampnian  v.  Milks,  21  N.  Y.  505;  Dunklee  v.  Wilton  R.  Co.  24 
N.  H.  489;  Seymour  Y.  Lewis,  13  N.  J.  Eq.  439;  Morrison  v.  King,  63 
111.  30. 

^Carhrey  v.  Willis,  7  Allen,  364;  Randall  v.  McLaughlin,  10  Allen,  366;  Buss 
V.  Dyer,  125  Mass.  287;  Warren  v.  Blake,  54  Me.  276. 

^Turnbullv.  Rivers,  3  McCord,  L.  89;  McDonald  v.  Lindall,  3  Rawle,  495; 
Seeley  v.  Bisliop,  19  Conn.  134;  Lawton  v.  Rivers,  2  McCord,  L.  445;  Ran- 
dall V.  McLaughlin,  10  Allen,  366;  Carbrey  v.  Willis,  7  Allen,  370;  /Screven 
V.  Gregorie,  8  Rich.  L.  163;  Nichols  v.  Luce,  24  Pick.  104;  Pomfret  v.  JSi- 


Cliap.  X.]  EASEMENTS  CREATED    BY    IMPLIED    GEANT.  iC9 

the  subject  tends  towards  the  conchision  that,  altliough  an  eapcment 
be  both  continuous  and  apparent,  there  is  no  implied  reservation 
of  it  upon  the  severance  of  two  tenements,  unless  it  be  also  an 
easement  of  necessity.'  The  necessity  requisite  cannot  be  created 
by  the  party  claiming  the  right  of  way,"  for  it  is  not  sufficient 
that  the  claimant  himself  create  the  necessity ;  "  as  if  a  self-created 
necessity  should  be,  either  in  law  or  reason,  any  justitication  of  a 
trespass  committed  on  another's  land."  * 

It  has  been  said  that  only  such  incorporeal  easements  as  are 
strictly  essential  and  necessary  to  the  enjoyment  of  the  estate 
granted  pass  with  the  word  "appurtenances."*  The  owner  of 
two  adjoining  city  lots,  Nos.  141  and  143,  conveyed  lot  No.  143 
to  defendant's  grantor  by  metes  and  bounds  as  being  twenty-twa 
feet  wide,  "  with  the  buildings  and  improvements  thereon,"  "  to- 
gether with  all  and  singular,  the  easements,  hereditaments  and  ap- 
purtenances thereto  belonging."  The  house  then  and  now  on  the 
lot  conveyed  extended  bej^ond  the  land  called  for  by  the  deed  five 
feet,  on  lot  No.  141  on  the  east  up  to  the  west  wall  of  the  buildino- 
thereon,  which  was  used  as  the  east  wall  of  the  house,  the  greater 
part  of  which  was  on  the  land  conveyed,  but  was  not  used  as  a 
party-wall,  the  timbers  not  being  keyed  into  it  but  resting  on  piers. 
The  case  was  distinct  from  Rogers  v.  Siyisheimer,  50  N.  Y.  646  • 
and  it  was  determined  that  the  deed  conveyed  only  that  part  of 
the  house  occupied  by  defendant  which  is  on  the  land  described 
therein,  and  that  no  easement  exists  for  the  extension  of  the  house 
upon  the  land  not  conveyed.  In  the  Rogers  Case  the  original 
owner  had  built  two  houses  on  the  two  lots  with  a  party-wall  eio-ht 
inches  thick  between  them  which  served  as  a  support  for  the  beams 
of  each  house.     On  the  same  day  he  sold  the  houses  by  two  deeds 

croft,  1  Saund.  323,  note;  Collins  v.  Prentice,  15  Conn.  39;  Pierce  v.  Selleck, 
18  Conn.  321;  Fetters  v.  Eumi^hreys,  19  N.  J.  Eq.  471;  Stuitvemntv  Wood- 
ruff, 21  N.  J.  L.  133;  Brakely  v.  8harp,  9  N.  J.  Eq.  9;  Barker  v.  Clark, 
4  N.  H.  380;  Johnson  v.  Jordan,  2  IVIet.  234;  Philbrick  v.  Ewing,  97  Mass' 
133;  SuJJieklY.  Brown,  10  Jur.  N.  S.  Ill;  Warren  v.  Blake,  54  Me.  276- 
Oayetty  v.  Bethune,  14  Pick.  51.     See  Am.  Law  Rev.  Oct.  1809,  p.  61.' 

^Wheeldon  v.  Burrows,  27  Week.  Rep.  165. 

^McDonald  v.  Lindall,  3  Rawle,  495. 

^Pomfret  v.  Ricroft,  1  Saund.  323,  note. 

*Kelly  V.  Dunning,  43  N.  J.  Eq.  62,  8  Cent.  Rep.  600;  Root  v.  WaflJinms,  107 
N.  Y.  384,  9  Cent.  Rep.  874;  Ogden  v.  Jennings,  62  N.  Y.  526-  GriffiLli^ 
V.  Morrison,  106  N.  Y.  165,  7  Cent.  Rep.  773. 


170  IMPOSED   DUTIES.  PERSONAL.  [Part   I. 

to  two  different  parties ;  conveyed  tlie  easterly  lot  to  A,  the  plain- 
tiff's grantor,  and  the  westerly  lot  to  B,  the  defendant's  grantor. 
The  deed  to  the  latter,  by  the  description,  located  a  division  line 
so  as  to  throw  the  party-wall  and  two  inches  of  land  on  the  west- 
erly side  thereof  within  the  plaintiff's  lot.    The  plaintiff  recovered 
3.  iudgment,  which  was  reversed  at  general  term,  and  the  reversal 
was  affirmed  on  appeal.     It  was  placed  upon  the  ground  that  as  it 
was  a  party-wall  which  at  the  time  of  the  conveyance  served  as  a 
support  for  the  beams  of  the  house  erected  on  the  lot  then  belong- 
ing to  defendant,  the  premises  were  obviously  charged  with  the 
servitude  of  having  the  beams  of  the  houses  rest  in  the  wall  and 
the  wall  remain  as  an  exterior  wall  for  defendant's  house  so  long 
as  the  building  should  endure.     Effect  was  given  to  the  fact  that 
it  was  a  party-wall  and  contained  an   actually  existing  support 
therein  for  the  beams  of  each  house,  and  the  right  existed  to  the 
use  of  it  as  an  exterior  wall,  and  consideration  was  taken  of  the 
fact  that  there  was  a  space  of  but  two  inches  beyond  the  party- 
wall  which  plaintiff  claimed,  and  that  the  space  was  so  short  as  to 
prevent  the  idea  being  formed  that  there  was  an  intention  by  such 
conveyance  to  terminate  the  character  of  the  wall  and  the  right  of 
defendant  to  rest  his  beams  upon  it.     Such  right  of  support  exist- 
ino-  carried  with  it,  of  course,  the  right  to  occupy  the  space  for  two 
inches  between  the  easterly  boundary  of  defendant's  lot  and  the 
wall  with  the  timbers  which  were  to  be  supported  in  the  wall. 
But  in  the  case  in  judgment,  there  was  no  party-wall  and  no  right 
of  support  for  the  beams  of  defendant's  house.    The  exterior  wall 
of  the  existing  house  had  simply  been  utilized  as  being  partition 
enouo-h  between  the  houses,  and  no  part  of  it  was  used  as  a  sup- 
port for  any  of  the  timbers  of  the  house  in  question,  and  this  wall 
was  five  feet  from  the  line  of  the  premises  which  were  actually 
conveyed  to  the  defendant.    The  character  of  the  easement  claimed 
by  the  defendant  in  effect  does  not  differ  from  a  claim  of  a  fee  to 
the  five  feet,  for  the  right  to  occupy  the  space  with  the  front  and 
rear  walls,  and  to  have  the  westerly  wall  of   the  other  building 
serve  as  the  eastern  exterior  wall  of  defendant's,  requires  in  its 
exercise  the  actual  and  exclusive  possession  of  that  amount  of 
land,  although  it  was  never  conveyed  to  defendant.     As  there  is 
no  intention  to  make  a  conveyance  of  any  such  right  expressed  in 


Chap.  X.]  EASEMENTS  CREATED   BY   IMPLIED   GRANT.  171 

the  deed,  it  was  decided  that  there  was  nothinoj  in  the  Rogers 
Case  which  compels  or  autliorizes  an  imphcation  of  such  an  inten- 
tion. It  was  ruled  that  a  privy,  hydrant,  etc.,  not  being  in  any 
sense  appurtenant  to  the  land  conveyed,  and  their  maintenance 
not  necessary  to  its  enjoyment  and  scarcely  even  convenience,  they 
would  not  operate  to  place  an  easement  upon  the  five  feet.*  But 
the  right  to  maintain  and  enjoy  the  exterior  walls  of  a  house  car- 
ries with  it  the  right  to  occupy  the  space  between  the  boundary 
of  the  lot  and  the  exterior  wall  of  the  building."  But  a  mere 
convenience,  it  is  ruled  in  New  York,  Massachusetts  and  Maine, 
is  not  sufficient  to  create  a  right  of  easement.'  Yet  it  is  said  a 
purchaser  of  real  estate  takes  the  property  subject  to  an  evident 
easement,  in  the  absence  of  any  reservation.*  It  may  be  inferred 
that  the  rule  in  Pyer  v.  Carter,  1  Hurl.  &  N.  916,  might  have 
been  looked  upon  with  more  favor  by  the  courts  in  many  cases,  if 
it  had  been  sought  to  apply  it  to  grants  of  the  dominant  estate.* 
Whether  this  inference  is  justified  or  not,  the  weight  of  authority 
in  such  cases  sustains  a  rule  less  exacting  than  that  of  strict  and 
indispensable  necessity.*  Thus  it  is  said  an  easement,  to  pass  by 
a  severance  of  the  heritages,  need  not  be  a  physical  necessity ;  it 
is  sufficient  if  it  is  "  highly  convenient  and  beneficial  therefor."  ^ 
"Whoever  grants  a  thing  is  understood  to  grant  that  without 
which  the  grant  itself  would  be  of  no  effect ;  and  it  is  under  this 
rule  that  a  way  of  necessity  is  implied.*     "When  the  use  of  any- 

^  Griffiths  V.  Morrison,  106  N.  Y.  165,  7  Cent.  Rep.  773. 

^Rogers  v.  Sinsheimer,  50  N.  Y.  648. 

^Griffiths  V.  Morrison,  106  N.  Y.  165,  7  Cent.  Rep.  773;  Carbrey  v.  Willis,  7 

Allen,  364;  Ogden  v.  Jennings,  62  N.  Y.  526;  Boot  v.  Wadhams,  107  N.Y 

384,  9  Cent.  Rep.  874;  Stevens  v.  Orr,  69  Me.  323. 
*Pierce  v.  Cleland,  133  Pa.  189,  7  L.  R.  A.  752;  ZeU  v.  First  Universalist  Soc. 

119  Pa.  390,  12  Cent.  Rep.  148. 
^Dillrnan  v.  Hoffman,  38  Wis.  559;  Washb.  Easem.  71. 
^Eenry  v.  Koch,  80  Ky.  391;  Gannon  v.  Boyd,  73  Pa.  179;  Simmons  v.  Cloo- 

nan,  81  N.  Y.  557;  Ingals  v.  Palmondon,  75  111.  118;  Rogers  v.  Sinsheimer, 

50  N.  Y.  646;   United  States  v.  Appleton,  1  Sumn.  492;  Janes  v.  Jenkins, 

34  Md.  1. 

'Goddard,  Easem.  (Bennett's  ed.)  122;  Washb.  Easem.  (3d  ed.)  95;  Penn- 
sylvania R.  Go.  V.  Jones,  50  Pa.  417;  McGarthy  v.  Kitclienman,  47  Pa. 
239;  Watts  v.  Kehon,  L.  R.  6  Ch.  App.  166;  McPherson  v.  Acker,  4 
MacxVrth.  150;  Janes  y.  Jenkins,  34  Md.  1;  Mcart  v.  Gochrane,  4  Macq. 
123;  Pyer  v.  Garter,  1  Hurl.  &  N.  916;  Sanderlin  v.  Baxter,  76  Va.  299; 
Simmons  v.  Gloonan,  81  N.  Y.  557;  Goodallv.  Godfrey,  53  Vt.  219;  Brown 
V.  Berry,  6  Coldw.  98;  Lampman  v.  Milks,  21  N.  Y.505;  Fetters  v.  Hum- 
phreys, 18  N.  J.  Eq.  260. 

^Boody  V.  Watson,  64  N.  H.  162,  4  New  Eng.  Rep.  563. 


172  IMPOSED   DUTIES,  PERSONAL.  [Part  L 

thing  is  granted  everything  is  granted  by  which  the  grantee  may 
have  enjoyment  of  such  use.'  Even  if  an  easement  existed  which 
was  merged  or  extinguished  by  unity  of  title  and  possession,  yet 
upon  a  severance,  an  easement  which  was  apparent  and  obvious 
would  revive."  The  degree  of  necessity  is  to  be  determined  rather 
by  the  permanency,  apparent  purpose  and  adaptability  of  the  dis- 
position made  by  the  owner  during  the  unity  of  title  than  by  con- 
sidering whether  a  possible  use  can  be  made  of  the  parcel  granted, 
after  a  discontinuance  of  the  right  formerly  exercised  over  the 
other.'  But  in  Maine  and  Massachusetts  no  easement,  whether 
continuous  or  not,  will  pass  by  implication  unless  it  is  one  of  strict 
necessity.*  Whether  the  continuance  of  the  previous  use  is  indis- 
pensable to  the  future  enjoyment  of  the  estate  granted  in  the  con- 
dition it  was  in  when  severed,  the  practicability  and  effect  of  new 
adjustments,  and  the  expense  involved  in  making  them,  while  not 
conclusive,  may  properly  be  taken  into  account,  not  for  the  pur- 
pose of  determining  the  necessity  of  a  continuance  of  the  use,  but 
to  illustrate  the  degree  of  probability  that  the  purchaser,  as  a  rea- 
sonable man,  took  the  conveyance  with  the  expectation  that  the 
existing  use  would  be  continued.  The  particular  facts,  and  the 
situation  and  disposition  of  the  estate,  in  each  case,  must  control. 
The  reasonable  application  of  the  doctrine  leads  to  the  general 
conclusion  that,  if  the  service  imposed  on  one,  during  the  unity  of 
possession  of  the  parcels  of  land,  was  of  a  character  looking  to 
permanency,  and  the  discontinuance  of  such  service  would  ob- 
viously invoke  an  actual  and  substantial  re-arrangement  of  that 
part  of  the  estate  in  whose  favor  the  service  was  imposed,  to  the 
end  that  it  might  be  as  comfortably  enjoyed  as  before,  then  such 
a  degree  of  reasonable  necessity  would  seem  to  exist  as  would  raise 
an  implication  that  the  use  was  to  be  continued.  Thus  in  John 
Hancock  M.  L.  Ins.  Co.  v.  Pattei^son^  103  Ind.  582, 1  West.  Eep. 
124,  where  the  owner  of  several  contiguous  lots  of  lands,  on  which 
there  were  buildings,  mortgaged  certain  of  the  same,  with  the 
buildings,  and  at  about  the  same  time  conveyed  an  adjoining  lot 

""Salem  Capital  Flour  Mills  Co.  v.  Stayton  W.  D.  &  C.  Co.  33  Fed.  Rep.  146. 
^Washb.  Easem.   (3d  ed.)  *p.  525;  Kieffer  v.  Imlioff,  26  Pa.  438;   Janes  v. 

Jenkins,  34  Md.  1;  Dunklee  v.  WMon  B.  Co.  24  N.  H.  489. 
^Dunklee  v.  Wilton  R.  Co.  24  N.  H.  489;  French  v.  Carhart,  1  N.  Y.  96. 
*Buss  V.  Dyer,  125  Mass.  287;  Dolliffv.  Boston  <&  M.  B.  Co.  68  Me.  173. 


Ohap.  X.]  EASEMENTS   CKEATED   BY    IMPLIED   GRANT.  173 

to  another  person,  and  upon  foreclosure  of  the  mortgage  it  ap- 
peared that  a  house  on  one  of  the  mortgaged  lots  projected  over 
the  line  and  stood  on  five  feet  of  the  lot  otherwise  conveyed,  it 
was  ruled  that  the  use  of  the  five  feet  of  the  adjoining  lot  being 
essential  to  the  use  of  the  house  and  its  continuance  being  indis- 
pensable to  the  future  enjoyment  of  the  estate  granted  in  the  con- 
dition it  was  in  when  severed,  the  grant  of  an  easement  to  continue 
such  use  must  be  implied,  and  so  much  of  the  lot  subsequently 
conveyed  as  is  covered  by  the  house  was  declared  subject  to  the 
servitude  of  the  easement. 

If,  on  the  other  hand,  the  arrangement  was  of  an  indifferent  or 
probably  temporary  character,  having  no  apparent  adaptability  to 
use  for  the  several  parts  in  the  situation  in  which  they  are,  and 
the  continuance  of  which,  while  obviously  detrimental  to  the  one, 
would  be  of  no  peculiar  value  beyond  mere  convenience  to  the 
other,  then  no  grant  would  be  implied.  Thus,  where  the  owner 
of  two  stores  containing  but  one  flight  of  stairs,  to  which  there 
was  access  through  a  partition  wall,  sold  the  store  in  which  there 
were  no  stairs,  and  described  it  by  metes  and  bounds,  making  the 
centre  of  the  wall  the  dividing  line,  the  conveyance  did  not  carry 
with  it  the  right  of  way  of  necessity  over  the  flight  of  stairs,  as 
tlie  door  cut  through  the  partition  wall  was  evidently  only  a  tem- 
porary expedient  and  the  purchaser  could  make  a  stairway  upon 
his  own  premises,  which  had  a  front  on  the  public  street.'  In 
Maine  the  rule  of  necessity  is  rigidly  held  to."  In  fact  a  right 
of  way  from  necessity,  it  has  been  said,  does  not  lie  in  grant,  nor 
is  it  created  by  deed,  but  by  operation  of  law,  and  is  an  appurte- 
nance of  the  thing  granted.^  But  the  weight  of  authority  as  shown 
by  the  citations  certainly  rests  the  right  upon  an  implied  grant. 
Where  land  is  conveyed,  to  which  there  is  no  access  except  across 
the  lands  of  the  grantor,  or  of  the  structure,  the  grantee  is  entitled 
to  right  of  way  across  the  lands  of  the  grantor  which  will  pass 
with  the  estate.*  A  way  of  necessity  arises  where  an  owner  of 
lands  conveys  a  tract  to  which  there  is  no  access  except  by  private 
road   over  his   other   lands.'      But   the    right  to  use    an   alley 

^Stillwell  V.  Foster,  80  Me.  333,  6  New  Eng.  Rep.  649. 
^Warren  v.  Blake,  54  Me.  276;  Stevens  v.  Orr,  69  Me.  323. 
^^Kripp  V.  Curtis,  71  Cal.  62. 
^Barnard  v.  Lloyd,  85  Cal.  131. 


174  IMPOSED   DUTIES,  PERSONAL.  [Part    L 

which  is  the  only  approach  from  the  highway  to  land  sold  passes,  not 
as  a  way  of  necessity,  but  as  an  appurtenance.'  The  rule  allow- 
ing a  way  of  necessity  preserves  access  but  does  not  give  two  modes 
of  access  and  double  right  of  way.'  A  grant  that  carries  with  it  a 
right  of  way  of  necessity  does  not  necessarily  imply  a  carriageway, 
even  though  the  thing  granted  be  a  liouse.^  A  way  of  necessity 
ceases  as  soon  as  the  necessity  ceases."  A  right  of  way  is  not  limited 
to  the  grantee  who  has  purchased  land  surrounded  by  other  land 
of  the  grantor,  but  extends  to  a  grantor  who  has  conveyed  land 
shutting  himself  off  from  a  highway.* 

A  rule  which  commends  itself  both  from  its  foundation  in  rea- 
son, and  its  support  in  authority,  draws  a  distinction  between  two 
classes  of  easements.  A  continuous  or  apparent  easement  is  either 
a  fixture,  or  it  is  enjoyed  by  means  of  a  fixture,  upon  the  land  itself. 
There  is  something  visible  by  which  it  may  be  known  to  a  pur- 
chaser, as  an  overhanging  roof,  a  sewer  or  a  water-pipe  actually 
used  for  the  purposes  indicated  by  their  presence.  A  right  of 
way  or  discontinuous  easement  of  any  kind  is  only  exercised  at 
intervals,  and  is  a  latent  incumbrance  or  claim,  the  very  existence 
of  which  may  depend  on  uncertain  and  doubtful  testimony.  It  is 
only  as  to  such  discontinuous  easements  that  the  rule  of  absolute 
necessity  should  be  applied,  and  then  only  when  the  necessity  can- 
not be  obviated  by  a  substitute  constructed  on  or  over  the  domi- 
nant premises.'  And  in  Nicholas  v.  Chamherlain^  Cro.  Jac.  121, 
cited  as  the  leading  case  on  the  whole  subject,  the  doctrine  is  laid 
down  that  apparent  or  continuous  easements,  such  as  the  use  of 
water  pipes  and  sewers  in  existence,  will  be  created  by  implica- 
tion upon  the  conveyance  of  the  servient  tenement  by  the  com- 
mon owner,  he  retaining  the  dominant  tenement.'^      Upon  the 

^Zell  V.  First  Universalisi  Soc.  119  Pa.  390,  12  Cent.  Rep.  148. 

^Kings  County  F.  Ins.  Co.  v.  Stevens,  101  N.  Y,  411,  2  Cent.  Rep.  430. 

3  ^Rowell  V,  Doggett,  143  Mass.  483,  3  New  Eng.  Rep.  756. 

^Ogden  v.  Grove,  38  Pa.  491;  Collins  v.  Prentice,  15  Conn.  39;  Buckby  v. 
Coles,  5  Taunt.  311;  Prowattain  v.  Philadelphia  (Pa.  Feb.  8,  1886)  2  Cent. 
Rep.  333;  3  Kent,  Com.  423;  Clark  v.  Cogge,  Cro.  Jac.  170;  Brigham  v. 
Smith,  4  Gray,  297;  White  v.  Bass,  7  Hurl.  &  N.  732;  Seymour  v.  Lewis, 
13  N.  J.  Eq.  444. 

^Lampman  v.  Milks,  21  N.  Y.  506;  Tliayer  v.  Payne,  2  Cush.  332;  Pheysey 
V.  Vicary,  16  Mees.  &  W.  484;  Pyer  v.  Carter,  1  Hurl.  &  N.  919;  Fetter 
V.  Humphreys,  18  N.  J.  Eq.  260. 

'Gale  &  W.  Easem.  40;  Wheeldonv.  Burrows,  L.  R.  12  Ch.  Div.  31,  49; 
Archer  v.  Bennett,  1  Lev.  131;  Coleman's  App.  62  Pa.  275;  Washb.  Easem. 
(4th  ed.)  105,  §§  3,  42  b. 


Chap.  X.]  EASEMENTS  OKEATED   BY   IMPLIED   GRANT.  175 

severance  of  a  heritage  a  grant  will  be  implied,  first,  of  all  those 
continuous  and  apparent  easements — including  those  that  may  be 
known  on  a  careful  inspection  by  one  ordinarily  conversant  with 
the  subject — which  have  in  fact  been  used  by  the  owner  during 
the  unity,  chough  they  have  had  no  legal  existence  as  easements ; 
and  secondly,  of  all  those  easements  without  which  the  enjoyment 
of  the  several  portions  could  not  be  fully  had.' 

But  there  is  a  class  of  rights  which  one  may  have  in  another's 
land  without  their  being  exercised  in  connection  with  the  occu- 
pancy of  their  lands,  and  therefore  called  rights  in  gross.  In  such 
cases,  the  burden  rests  upon  one  piece  of  land  in  favor  of  a  person 
or  individual.  The  particular  distinction  between  an  casement 
and  a  right  of  way  in  gross  is  found  in  the  fact  that  in  the  first 
there  is,  and  in  the  second  there  is  not,  a  dominant  tenement. 
The  right  of  way  is  in  gross  and  personal  to  the  grantee  because 
it  is  not  appurtenant  to  other  premises.  The  owner  of  premises 
may  grant  the  right  of  way  in  either  form,*  Where  the  grant  of 
a  right  of  way  is  personal  it  is  not  assignable  or  inheritable  and 
cannot  pass  to  a  trustee  in  insolvency  or  to  a  corporation  succeed- 
ing the  individual  grantees.*  But  an  easement  of  a  right  of  way 
is  not  presumed  to  be  personal,  where  it  can  fairly  be  construed  to 
be  appurtenant  to  some  other  estate.*  A  right  of  way  across  a 
lot,  given  by  a  conveyance  of  an  adjoining  lot,  to  be  used  in  com- 
mon with  the  grantors  and  the  owners  and  occupants  of  the  for- 
mer lot,  is  a  right  appurtenant  to  the  lot  conveyed ;  and  the 
grantee,  after  he  has  conveyed  the  lot,  cannot  claim  to  be  still 
entitled  to  use  the  right  of  way  in  connection  with  any  other  lot 
subsequently  acquired.^  A  reservation,  in  a  conveyance  of  a  lot 
which  has  a  right  of  way  appurtenant,  of  such  right  of  way  to  the 
grantor,  is  ineffectual.     He  cannot  enlarge  the  right,  or  retain  any 

'  Gale  &  W.  Easem.  49,  51.  53;  Lampman  v.  Milks,  21  N,  Y.  507;  Bobbins  v. 
Barnes,  Hobart,  131;  Nicholas  v.  Chamberlain,  Cro.  Jac.  121;  Cox  v.  Mat- 
tJiews,  ]  Vent.  237;  Pabner  v.  Fletcher,  1  Lev.  122,  1  Sid.  167;  Shury  v. 
Piggott,  3  Bulst.  339;  Brakeli/  v.  Shai-p,  10  N.  J.  Eq.  206;  Hazard  v.  Robin- 
son, 3  Mason,  222;  United  Slates  v.  Appleton,  1  aumn.  492;  New-Ipsicich 
W.  L.  Factory  v.  Batchelder,  3  N.  H.  190;  Kilgour  v.  Ashcom,  5  Har,  &  J. 
82;  Seymour  v.  Lewis,  13  N.  J.  Eq.  444. 

^Wagner  v.  Hanna,  38  Cal.  111. 

^Hall  V.  Armstrong,  53  Conn.  554,  1  New  Eng.  Rep.  831. 

^Reise  v.  Enos  (Wis.  Apr.  29,  1890)  8  L.  R.  A.  617;  Winston  v.  Johnson,  42 
Minn.  398. 

''Reise  v.  Enos  (Wis.  Apr.  29,  1890)  8  L.  R .  A.  617. 


176  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

interest  in  the  right  of  way,  as  separate  and  distinct  from  the  lot 
to  which  it  belongs.*  An  agreement  conveying  the  right  to  use 
fences  and  buildings  for  advertising  purposes  will  create  an  ease- 
ment and  right  of  way  in  gross.  The  record  of  such  agreement 
will  affect  creditors  and  subsequent  purchasers."  If  the  owner  of 
land  annexes  to  part  of  it  a  right  of  way,  as  appurtenant  to  the 
land,  and  then  conveys  such  land,  his  grantees  acquire  an  ease, 
ment.'  A  way  for  Agricultural  purposes,  whether  cieated  by 
grant  or  adverse  use,  may  properly  be  subjected  to  gates  and  bars 
not  unreasonably  established.*  The  nature  of  the  easement  gained 
determines  its  character,  and  not  the  particular  manner  of  the  use 
that  created  the  right."  A  grantee  of  land  across  which  a  prior 
grantee  from  the  same  grantor  has  the  right  to  a  way  by  necessity 
takes  it  subject  to  such  right,  although  it  had  been  neither  exer- 
cised nor  claimed  before  his  title  was  acquired.'  And  where  a 
right  of  way  is  granted,  it  becomes  an  appurtenance  to  the  land, 
following  it  into  the  hands  of  each  successive  grantee.'' 

3.  By  Pt'escriptioTi :  Light,  Air. 

Easements  originate  in  grant,  or  reservation  in  deed  of  land,  or 
are  implied  by  prescription.  They  do  not  change  with  the  per- 
sons. Disturbances  may  be  checked  or  removed,  by  action  on 
the  case,  by  injunction  or  by  abatement.* 

Eights  at  common  law  are  acquired  by  prescription  when  pos- 
session or  enjoyment  had  existed  where  "  the  memory  of  man  ran 
not  to  the  contrary."  Prior  to  the  Statute  of  Merton  the  limita- 
tion of  a  writ  of  right  was  from  the  time  of  Henry  I.,  that  is  to 

^Reise  v.  Enos  (Wis.  Apr.  29,  1890)  8  L.  R.  A.  617. 

^Willouglihyv.  Lawrence,  116  111.  11,  3  West.  Rep.  472. 

^Parish  v.  Gaspare,  109  Ind.  586,  7  West.  Rep.  369, 

4  ^Ames  V.  Sliaw,  82  Me.  379. 

^Logan  v.  Stogsdale,  123  Ind.  372,  8  L.  R.  A.  58. 

''Boss  V.  Thompson,  78  Ind.  90;  Bobinson  v.  Thrailkill,  110  Ind.  117,  8  West. 
Rep.  556. 

^Cagle  v.  Parher,  97  N.  C.  271  ;  Brooks  v.  Beynolds,  106  Mass.  31  ;  An- 
derson, Law  Diet.  391;  Sanderlin  v.  Baxter,  76  Va.  305;  CJieney  v. 
O'Brien,  69  Cal.  199;  Earwood  v.  TompTcins,  24  N.  J.  L.  425;  Wheeler  v, 
Clark,  58  N.  Y.  267;  Steere  v.  Tiffany,  13  R.  I.  570;  Burnham  v.  Nevins, 
144  Mass.  88,  94;  Plimpton  v.  Converse,  42  Vt.  712;  Deerfield  v.  Connecti- 
cut River  R.  Co.  144  Mass.  325;  Black  v.  0  Hara,  54  Conn.  17;  Zigefoose 
V.  Zigefoose,  69  Iowa,  391. 


Chap.  X.]  EASEMENTS   OBEATED    BY    PKESCRIPTION.  177 

fiay  from  the  year  1100,  or  135  years.'  By  the  Statute  of  Mer- 
ton,"  a  limitation  in  a  writ  of  right  was  from  the  time  of  Henry 
II.,  a  period  of  70  years.  Writs  of  mort  W ancestor  and  of  entry 
were  not  to  pass  the  last  return  of  King  John  from  Irehmd,  a 
period  of  25  years.  Writs  of  novel  de  seizin  were  not  to  pass  the 
first  voyage  of  the  King  into  Gascony,  a  period  of  15  years.  By 
the  Statute  of  Westminster,'  the  time  for  bringing  a  writ  of  right 
was  limited  to  the  time  of  King  Richard  L,  a  period  of  88  years. 
Writs  of  moi't  d'ancestor,  of  cosinage,  of  aiel  and  of  entry  were 
■limited  to  the  coronation  of  Henry  III.,  about  58  years.  The 
writ  of  oiovel  de  seisin  was  to  remain  limited  as  before,  namely, 
to  the  passage  of  Henry  III.  into  Gascony.  Although  this  Stat- 
ute had  reference  to  actions  for  the  recovery  of  real  estate,  the 
judges  applied  the  rule  as  to  the  prescription  established  by  the 
Statute  of  Incorporeal  Hereditaments,  and,  among  others,  to 
easements. 

To  relieve  the  difficulty  arising  from  the  impossibility  of  car- 
rying back  the  proof  of  possession  or  enjoyment,  it  was  held  that 
if  the  proof  was  carried  back  as  far  as  the  living  memory  would 
go,  it  should  be  presumed  that  the  right  claimed  had  existed  from 
legal  memory,  that  is  to  say,  from  the  time  of  Richard  I.  In 
Bury  V.  Pope,  Cro,  Eliz.  118,  in  an  action  for  stopping  lights,  it 
was  agreed  that  if  two  men  be  owners  of  two  parcels  of  laud  ad- 
joining, and  one  of  them  build  a  house  upon  his  land,  and 
make  windows  and  lights  looking  onto  the  other's  land,  and  the 
house  and  the  lights  have  continued  for  the  space  of  thirty  or 
forty  years,  yet  the  other  may  upon  his  own  land  and  soil  law- 
fully erect  a  house  or  other  thing  against  the  said  lights  and  win- 
dows, and  the  other  can  have  no  action  ;  for  it  was  his  fault  to 
build  his  house  so  near  to  the  other's  land ;  and  as  late  as  1  Car. 
II.  it  was  held  in  Sury  v.  Pigot,  1  Popham,  16G,  that  to  maintain 
an  action  for  obstructing  lights,  the  light  must  be  prescribed  for 
as  having  been  in  time  out  of  mind.  The  Statute  of  Jac.  I.,  chap. 
21,  which  limits  the  time  for  a  possessory  action  to  twenty  years, 
led  to  the  adoption  of  that  period  by  the  court  as  sufficient  to 

'  Bracton,  De  Legibus,  179. 
2  20  Henry  III.  chap.  8. 
« 3  Edward  I.  [1275]  cbap.  39. 
12 


178  IMPOSED   DUTIES,  PERSONAL.  [Part    I. 

found  the  presninption  of  the  existence  of  a  right  from  the  time 
of  legal  memory.  But  this  presumption  of  prescriptive  right  was 
held  capable  of  being  repudiated  by  proof  of  an  original  grant  at 
a  time  later  than  that  of  legal  memory  ;  and  the  presumption  failed 
whenever,  in  the  progress  of  the  cause,  it  appeared  that  the  dis- 
puted right  had  had  a  later  origin.  To  avoid  this,  as  every  incorpo- 
real hereditament  must  have  had  its  origin  in  a  grant,  the  fiction 
was  resorted  to  of  presuming,  after  long  user,  a  grant  by  a  deed 
which,  in  the  lapse  of  time,  had  been  lost.  After  the  Statute  of 
James,  user  for  twenty  years  was  held  to  be  sufficient  to  raise  this 
presumption  of  a  lost  grant,  and  juries  were  directed  so  to  find 
where  the  presumption  was  known  to  be  a  mere  fiction.  The  Act 
of  2  and  3  William  IV.,  chap.  Tl,  was  passed  with  a  view  of  put- 
ting an  end  to  this  forced  presumption.  In  Mayor  of  Kingston 
V.  Horner^  1  Cowp.  102,  108,  Lord  Mansfield  thus  explains  the 
law :  "  There  is  a  great  difEerence  between  length  of  time  which 
operates  as  a  bar  to  a  claim,  and  that  which  is  only  used  by  way 
of  evidence.  A  jury  is  concluded  by  length  of  time  that  operates 
as  a  bar,  i.  e.,  where  the  Statute  of  Limitations  is  pleaded  in  bar 
to  a  debt ;  though  the  jury  is  satisfied  that  the  debt  is  due  and  un- 
paid, it  is  still  a  bar.  So  in  the  case  of  a  prescription,  if  it  be  time 
out  of  mind,  the  jury  is  bound  to  conclude  a  right  from  that  pre- 
scription, for  there  would  be  a  legal  commencement  of  a  right ; 
but  any  written  evidence  showing  that  there  was  a  time  when  the 
prescription  had  not  existed,  is  an  answer  to  a  claim  founded  on 
prescription  ;  but  length  of  time  used  merely  by  way  of  evidence 
may  be  left  to  the  ansideration  of  the  jury,  to  be  credited  or  not, 
and  to  draw  inferences  one  way  or  the  other,  according  to  the 
circumstances.'" 

In  Cross  v.  Lewis,  2  Barn.  &  C.  686,  an  action  for  obstructing 
ancient  lights,  and  in  which  the  lights  were  proved  to  have  ex- 
isted for  38  years,  Bailey,  J.,  when  the  case  was  before  the  Court 
of  King's  Bench  on  the  rule  nisi,  entered  a  verdict  for  the  de- 
fendant, and  says :  "  I  do  not  say  that  twenty  years'  possession 
confers  a  legal  right;  but  uninterrupted  possession  for  twenty 
years  raises  a  presumption  of  right;  and  ever  since  the  decision  in 
Darwin  v.  Upton,  2  AVm.  Saund.  175,  it  has  been  held,  in  the 

'  See  Campbell  v.  Wilson,  3  East,  294. 


Chap.  X.]  EASEMENTS  CREATED   BY    PRESCRIPTION.  179 

absence  of  any  evidence  to  rebut  tliat  presumption,  and  the  jury 
should  be  told  to  act  upon  it." 

In  Livett  V.  Wilson^  3  Bing.  115,  Best,  Ch.  J".,  said :  "  I  do  not 
dispute  that  if  there  had  been  uninterrupted  usage  for  twenty 
years  the  jury  might  be  authorized  to  presume  it  originated  in  a 
deed,  but  even  in  such  a  case  a  judge  would  not  be  justified  in 
saying  that  they  must,  but  they  may,  presume  tlie  deed.  If, 
however,  there  are  circumstances  inconsistent  with  the  existence 
of  a  deed,  the  jury  should  be  directed  to  consider  them  and  decide 
accordingly." 

An  instance  in  which  such  a  presumption  failed  is  to  be  found 
in  the  case  of  Barker  v.  Richardson,  4  Barn.  &  Aid.  579.  There 
lights  had  been  enjoyed  for  more  than  twenty  years  over  land 
which  during  part  of  the  time  had  been  glebe  land.  The  defend- 
ant, a  purchaser  under  55  Geo.  III.,  chap.  107,  had  obstructed  the 
lights.  It  was  held  that  the  grant  could  not  be  presumed,  inas- 
much as  the  erector,  being  only  a  tenant  for  life,  was  incompetent 
to  grant  such  easement. 

But  an  attempt  to  raise  an  old  party- wall  fifteen  feet,  on  the 
ground  that  boxes  had  frequently  been  piled  up  to  that  height, 
darkening  plaintiffs  windows,  was  enjoined  on  the  ground  that 
no  interruption  of  plaintiffs  enjoyment  of  light  continuing  for 
one  year  within  the  meaning  of  the  English  Prescription  Act  was 
shown  to  overcome  the  plaintifi's  prima  facie  case  of  twenty  years' 
enjoyment.* 

Under  the  Statute  of  1832  in  England  and  in  the  judgment  of 
the  courts  in  New  Jersey  the  doctrine  of  ancient  lights  was  once 
recognized,^  but  in  that  State  it  is  since  denied.'  But  in  South 
Carolina,  in  Kentucky  (by  obiter)  and  in  Delaware,  this  enjoy- 
ment for  twenty  years  creates  a  prescriptive  right.* 

"Where  plaintiffs  house  stood  on  the  line  of  an  alley,  never 
dedicated  to  the  public,  which  ran  between  plaintiff's  lot  and  the 
defendant's,  the  court  enjoined  the  erection  in  the  alley  of  a  fence 

^Presland  v.  Bingham,  L,  R.  41  Ch.  Div.  268. 
'^Robeson  v.  Pittenger,  2  N.  J.  Eq.  57. 
mayden  v.  Butcher,  31  N.  J.  Eq.  217. 

*McCready  v.  Thomson,  1  Dudley,  L.  131;  Manier  v.  Myers,  4  B.  Mon.  520; 
ClawHon  v.  Primrose,  4  Del.  Ch.  643. 


180  IMPOSED   DUTIES,    PERSONAL.  [Part    I. 

by  the  defendant,  which  would  have  closed  up  certain  windows 
of  plaintiff's  house.' 

But  in  tliis  country  the  doctrine  of  acquiring  a  right  to  lights 
by  prescription  is  not  generally  recognized.' 

Thus  the  mere  fact  that  an  alley,  which  is  not  public,  has  re- 
mained uninclosed  and  that  a  party  not  its  owner  has  built  a  house 
with  doors  and  windows  opening  upon  it  and  enjoyed  the  benefit 
of  the  light  and  ventilation  which  it  affords,  conferred  no  right 
upon  such  party  to  have  it  kept  open.' 

But  the  owner  of  a  lot  abutting  on  a  public  street  in  a  city 
has,  as  appurtenant  to  the  lot,  and  independent  of  the  own- 
ership of  the  fee  of  the  street,  an  easement  in  the  street  to 
the  full  width  thereof,  for  admission  of  light  and  air  to  his 
lot,  which  easement  is  subordinate  only  to  the  public  right  in  the 
street.  Whenever  without  his  consent,  and  without  compensation 
to  him,  a  railroad  is  laid  and  operated  along  the  portion  of  the 
street  in  front  of  his  lot  so  as  upon  that  part  of  the  street  to  cause 
smoke,  dust,  cinders,  etc.,  which  darken  and  pollute  the  air,  com- 
ing upon  the  lot  from  that  part  of  the  street,  the  lot  owner  may 
recover  whatever  damages  to  his  lot  are  thus  caused  by  so  laying 
and  operating  the  raih-oad.* 

So  the  owner  of  a  building  has  the  right  of  easement  of  the 
lio-ht  from  the  street,  and  is  entitled  to  damages  from  obstructions 
caused  by  an  elevated  railroad  ;'  but  not  in  New  York  by  a  surface 
railroad,  unless  he  own  the  fee  in  the  street.' 

But  in  Massachusetts  it  is  recognized  that  the  right  to  have  land 
unbuilt  upon  for  the  benefit  of  the  light,  air,  etc.,  of  neighboring 

^Sanhey  v.  St.  Mary's  Female  Academy,  8  Mont.  265.  See  Siallard  v.  Cush- 
incj,  76  Cal.  472;  Lyo7i  v.  McDonald,  78  Tex.  71,  9  L.  R.  A.  295. 

^Poioell  V.  Sims,  5  W.  Va.  1;  Keiper  v.  Klein,  51  Ind.  316;  Morrison  v.  Mar- 
quardt,  24 Iowa,  S5;Rlein  v.  Oehrung,  25  Tex.  Supp.  232;  Mullen  v. Striek- 
er, 19  Ohio  St.  135;  Huhhard  v.  Town,  33  Vt.  295;  Pierre  v.  Fernald,  26 
Me.  436;  Richardson  v.  Pond,  15  Gray,  887;  Hayden  v.  Butcher,  31  N.  J. 
Eq.  217;  Parker  v.  Foote,  19  Wend.  309;  Eaverstick  v.  Sipe,  33  Pa.  368; 
Oilmore  v.  Driscoll,  122  Mass.  199;  Napier  v.  Bulwinkle,  5  Rich.  L.  311; 
Ward  V.  Neal,  37  Ala.  501;  Lapere  v.  Luckey,  23  Kan.  534. 

Wexterv.  Tree,  117  111.  532,  5  West.  Rep.  897;  Quest  y.  Reynolds,  68  111.  478. 

'^ Adams  v.  Chicago,  B.  &  N.  R.  Co.  39  Minn.  286,  1  L.  R.  A.  493;  Oulf,  C.  & 
S.  F.  R.  Co.  V.  Fuller,  63  Tex.  467. 

'^Pond  V  Metropolitan  E.  R.  Co.  42  Hun,  567;  Werfelman  v.  Manhattan  B. 
Co.  (0.  P.)  32  N.  y.  S.  R.  682. 

^Fobes  V.  Rome,  IF.  &  0.  R.  Co.  121  N.  Y.  505. 


Chap.  X.]  EASEMENTS    OKEATED   BY    LICENSE.  ISl 

land,   may  be  made  an  easement,  witliin   reasonable  limits,    by 
deed.' 

4.  By  License;  Estoppel. 

A  license  of  the  sole  and  exclusive  privilege  to  shoot  wild  fowl 
on  the  lakes  and  waters  of  grantor,  with  the  privilege  of  ingress 
and  egress  to  and  from  the  said  lakes  and  waters,  is  a  grant  of  a 
profit  a  prendre^  and  not  a  mere  revocable  license,  and  confines  the 
grantee  to  the  places  indicated  in  the  grant,  and  does  not  author- 
ize him  to  grant  to  others,  indiscriminately,  permits  to  exercise 
the  same  privilege."  A  verbal  agreement  between  several  owners 
of  several  tracts  of  land,  by  which  each  gives  to  the  others  a  right 
of  way  over  his  land,  amounts  to  a  mere  license,  revocable  at  the 
will  of  either  party.* 

"When  a  rented  field  is  accessible  by  a  public  road,  permission 
to  use  a  shorter  pathway  through  the  lessor's  other  lands  will  not 
be  implied  from  its  greater  convenience ;  and  its  use  without  ob- 
jection is  no  more  than  a  parol  license,  which  is  revocable  at  pleas- 
ure ;  but  if  the  use  of  the  pathway  was  a  part  of  the  contract,  or 
was  held  out  as  an  inducement  to  the  contract,  the  lessor  would  be 
estopped  from  prohibiting  its  rightful  use  by  the  lessee  or  his  serv- 
ants.* While  a  general  right,  as  by  prescription,  cannot  be  main- 
tained by  alleging  and  proving  a  particular  or  permissive  right  or 
license,'  and  an  easement  implies  an  interest  in  the  land  in  or  over 
which  it  is  enjoyed,^  and  a  license  carries  no  such  interest,  and  is 
revocable  at  common  law  at  the  will  of  the  owner  of  the  servient 
estate,^  yet  although  this  is  the  law  in  many  of  the  States  of  the 
Union,  there  is  an  exception  to  the  rule  in  some  of  them  in  the 
case  of  executed  licenses,  where  the  licensee  has  incurred  expense 

^Ladd  V.  Boston  (Mass.  June  20,  1890)  |34  N.  E.  Rep.  858;  Salisbum  y.  An- 
drews, 128  Mass.  336. 

^Bingham  v.  SaUne,  15  Or.  208. 

^Glark  v.  Oaffeney,  116  111.  363,  3  West.  Rep.  581. 

*Motes  V.  Bates,  80  Ala.  383. 

^Parish  y.  Kaspare,  l09  Ind.  586,  7  West.  Rep.  869;  Pentland  v.  Keep,  41 
Wis.  490;  Chestnut  Hill  &  S.  H.  Tump.  Co.  v.  Piper,  17  Pa.  432. 

'Rowbotham  v.  Wilson,  8  El.  &  Bl.  123. 

^Foster  v.  Browning,  4  R.  I.  47;  Ki/le  v.  Texas  &  N.  0.  R.  Co.  (Tex.  May, 
1889)  4  L.  R.  A.  276,  note;  Cocker  v.  Coicper,  1  Cromp.  M.  &  R.  418; 
Veghte  v.  Baritan  W.  P.  Co.  19  N.  J.  Eq.  153;  Hill  v.  Cutting,  113  Mass. 
107;  mtcliens  v.  Shaller,  33  Mich.  496;  Dodge  v.  McClintock,  47  N.  H.  386; 
Duinneen  v.  Bich,  23  Wis.  550,  558;  Whitney  v.  Union  R.  Co.  11  Gray,  359. 


182  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

in  the  execution  of  the  same,  equity  in  such  cases  holding,  for 
purposes  of  remedy,  that  such  shall  be  deemed  an  executed  con- 
tract.' Thus,  while  it  is  well  established  that  a  mere  naked  license 
to  use  the  land  of  another  is  revocable  at  the  pleasure  of  the  li- 
censee, yet  where  a  consideration  has  been  paid,  or  value  parted 
with,  on  the  faith  that  the  license  shall  be  perpetual,  it  cannot  be 
revoked  to  the  injury  of  the  licensee."  An  executed  parol  license 
may  become  an  easement  upon  the  land  of  another,  and  may  im- 
pose a  servitude  on  one  tenant  or  estate  in  favor  of  another  domi- 
nant estate.'  Where  a  parol  license  has  been  executed  and  acted 
upon,  and  expense  incurred  in  perfecting  an  easement  over  the 
land  of  another  in  reliance  on  the  license,  it  cannot  afterwards  be 
revoked  without  placing  the  licensee  in  statu  quo.*  The  defend- 
ants erected  and  maintained  gates  at  their  own  expense,  upon  the 
faith  of  an  agreement  that  they  were  to  have  a  perpetual  easement 
to  pass  over  the  plaintiffs'  lands.  This  agreement  having  been 
fully  executed  and  acquiesced  in  by  the  parties  who  made  it  for 
more  than  thirty  years,  a  court  of  equity  will  not  now  permit  the 
license  to  be  revoked.^  A  license  founded  on  a  consideration, 
when  possession  had  been  taken  under  it,  cannot  be  revoked.* 
A  license  to  use  the  fences  and  buildings  of  a  trotting  park  for 
advertising  purposes,  where  the  licensee  expended  $2,300  in  erect- 

^Nowlin  V.  Whipple,  120  Ind.  596,  6  L.  R.  A.  159;  Washb.  Easem.  28;  Hulme 
V.  Shreve,  4  N.  J.  Eq.  116;  Vegkte  v.  Raritan  W.  P.  Co.  19  N.  J.  Eq.  153; 
Snowden  v.  Wilas,  19  Ind.  14;  Van  Ohlen  v.  Van  Olilen,  56  111.  528;  Parish 
V.  Kaspare,  109  Ind.  586,  7  West.  Rep.  869;  Stephens  v.  Benson,  19  Ind. 
369;  Wickersham  v.  Orr,  9  Iowa,  260;  Beatty  v.  Gregory,  17  Iowa,  114; 
Berick  v.  Kern,  14  Serg.  &  R.  267;  Lacy  v.  Ar?ieU,  33  Pa.  169;  Huff  v. 
MeCauley,  53  Pa.  206;  Thompson  v,  McElarney,  82  Pa.  174.  See  also 
Legg  v.  Horn.  45  Conn.  415;  Butt  v.  Napier,  14  Bush,  39;  Dempsey  v. 
Kipp,  61  N.  Y.  462;  Wiseman  v.  Lucksinger,  84  N.  Y.  31;  Cronkhitev. 
Cronkhite,  94  N.  Y.  323;  Meek  v.  Breckenridge,  29  Ohio  St.  642;  United 
States  V.  Baltimore  &  0.  R.  Co.  1  Hughes,  138;  Ellsworth  v.  Southern  Minn. 
B.  E.  Co.  31  Minn.  543;  Batchelder  v.  Hibbard,  58  JST.  H.  269;  Lockha/rt 
V.  Oeir,  54  Wis.  133. 

^Snowden  v.  Wilas,  19  Ind.  10;  Robinson  v.  Thrailkill,  110  Ind.  117,  8  West. 
Rep.  556,  and  cases  cited, 

^Dark  v.  Johnston,  55  Pa.  164;  Washb.  Easem.  24. 

''■Woodbury  v.  Parshley,  7  N.  H.  237. 

^Nowlin  V.  Whipple,  120  Ind.  596,  6  L.  R.  A.  159. 

^Parish  v.  Kaspare,  109  Ind.  586,  7  West.  Rep.  369;  Burrow  v.  Terre  Haute 
&  L.  B.  Co.  107  Ind.  432,  5  West.  Rep.  626,  and  cases  cited;  Simons 
V.  Morehouse,  88  Ind.  391;  Nowlin  v.  Whipple,  79  Ind.  481;  Rogers  v.  Cox, 
96  Ind.  157,  49  Am.  Rep.  152;  Snowden  v.  Wilas,  19  Ind.  10. 


Ohap.  X.]  EASEMENTS    CREATED    BY    LICENSE.  183 

iiig  fences  for  such  use,  is  irrevocable.'  When  a  party  relies  upon 
expenditure  upon  the  faith  of  a  license,  as  an  estoppel,  the  evi- 
dence of  the  facts  constituting  the  estoppel  should  be  clear,  and 
the  expenditure  should  not  be  trivial  in  amount.'  An  estoppel 
in  pais  can  never  operate  to  prejudice  the  rights  of  the  person 
estopped,  except  when  the  sole  deed  of  such  person  would  have  a 
similar  operative  effect.'  The  doctrine  of  estoppel  only  avails 
one  who,  acting  with  due  care  and  caution,  has  been  induced  to 
do,  or  refrain  from  doing,  some  act  by  the  acts  or  representations 
of  another,  made  when  known  to  be  false  and  for  the  purpose  of 
bringing  about  such  a  result.*  Where  one  states  a  thing  to  an- 
other with  a  view  to  the  other's  altering  his  position,  then  the 
person  to  whom  the  statement  is  made  is  entitled  to  hold  the  other 
bound,  and,  the  matter  is  regulated  by  the  state  of  facts  as  ira- 
ported  by  the  statement.*  The  owner  of  land  upon  which  is  an 
apparent  way  may  be  estopped  to  deny  the  easement  by  repre- 
senting the  way  to  be  such  to  one  about  to  purchase,  when  in  the 
faith  of  such  statement  he  purchases  adjoining  land  to  which 
such  way  is  an  outlet*  Even  silence,  when  the  rights  of  the  pub- 
lic are  involved,  will,  so  far  as  their  interests  are  to  be  affected, 
amount  to  an  irrevocable  license.  Thus  a  land  owner  who  stands 
by  without  demanding  compensation,  until  a  railroad  company  has 
30  far  completed  and  put  in  operation  its  railroad  over  his  land  as 
to  involve  the  public  interest,  can  neither  enjoin  the  company  nor 
maintain  ejectment ;  his  only  remedy  is  an  action  for  damages.^ 
Parties  may  be  as  completely  estopped  by  their  conduct  to  deny 

^WillovgJiby  v.  Lawrence,  116  111.  11,  3  West.  Rep.  472. 

^McCarthy  v.  Mutual  Relief  Asso.  81  Cal.  584. 

^Henry  v.  Sneed,  99  Mo.  407. 

*Bank  of  Hindustan  v.  Allien,  L.  R.  6  C.  P.  54;  Staee  &  Worth's  Case,  L.  R. 
4  Cb.  682;  Liverpool  Wharf  Co.  v.  Prescott,  7  Allen,  494;  Plumerv.  Lord, 
9  Allen,  455;  Langdon  v.  Doud,  10  Allen,  433;  Andrews  v.  Lyons,  11 
Allen,  349;  Turners.  Coffin,  12  Allen,  401;  Murse  v.  JVourse,  116  Mass. 
101. 

^Conrow  v.  Little,  115  N.  Y.  387,  5  L.  R  A.  693. 

^Pitcher  v.  Dove,  99  Ind.  177.  See  also  McKimie  v.  Elliott  (111.  June  12,  1890) 
24  N.  E.  Rep.  965;  Devonshire  v.  Eglin,  14  Beav.  530;  Williams  v.  Jersey 
Craig  &  Ph.  91;  Tarrant  v.  Terry,  1  Bay,  239;  Rowbotham  v.  Wihon,  8 
El.  &  Bl.  145.  See,  as  to  estojipel  from  executed  licenses,  Le  Fevre  v. 
Le  Fevre,  4  Serg.  &  R.  241 ;  Short  v.  Taylor,  2  Eq.  Cas.  Abr.  522. 

''Louisville,  N.  A.  &  C.  R.  Co.  v.  Beck,  119  Ind.  124, 


184  IMPOSED   DUTIES,    PEKSONAL.  [Part    L 

an  easement,'  as  by  the  recitals  in  a  deed/  An  easement  may 
be  created  by  estoppel,  even  if  a  plat  had  never  been  acknowledged 
or  recorded,  and  there  had  been  no  right  by  prescription  or  dedi- 
cation.' The  sale  of  a  house  fronting  on  an  open  strip  of  land 
belonging  to  the  vendor  makes  that  strip  of  land  a  highway/  The 
rights  created  by  the  plat  must  be  ascertained  exclusively  from  the 
plat,  and  cannot  be  enlarged  or  diminished  by  the  parol  construc- 
tion of  those  who  made  it/  An  agreement  made  between  adjoin- 
ing owners  in  relation  to  a  party-wall  erected  on  the  division  line 
of  their  lots  is  binding  on  the  parties,  and  creates  an  equitable 
charge,  easement  and  servitude  upon  the  lots  built  u]3on/  It 
creates  an  easement  which  runs  with  the  land,  from  privity  of  es- 
tate; but  a  stipulation  that  the  adjoining  owner  pay  one  half  the 
cost  is  a  personal  covenant,  enforceable  only  by  the  covenantee/ 
The  terms  of  the  license,  whether  revocable  at  pleasure  or  intended 
to  run  for  life,  and  the  acts  and  evidence  of  part  performance,  as 
being  in  execution  of  a  complete  and  fully  understood  agreement^ 
must  be  clear,  definite  and  certain  in  their  object  and  design/ 

Expenditures  made  on  land  under  a  license,  if  of  such  a  nature 
as  create  an  equity  in  favor  of  the  licensee,  entitling  him  to  the 
irrevocable  enjoyment  of  the  easement  and  "benefit  of  his  expendi- 

^  Chicago  v.  Wright,  69  111.  318;  Kane  County  v.  Herrington,  50  111.  233;  Hyde 

Park  V.  Borden,  94  111.  36;  Curry  v.  Mt.  Sterling,  15  111.  330. 
^Illinois  Ins.  Co.  v.  Littlefield,  67111.  368;  Pinckard    v.  Mibnine,  76  111.  453; 

By7'ne  v.  Morehouse,  22  111.  603;  Morgan  v.  Moore,  3  Gray,  319;  Sheen  v. 

Stothart,  29  La.  Ann.  630;  Bigelow,  Estop.  (3d  ed.)  306.     See  Eueckenv. 

Voltz,  110  111.  265;  Winthrop  v.  Fairbanks,  41  Me.  307;  Kent  v.  Waite,  10 

Pick.  138;  Mendell  v.  Delano,  7  Met.  176;  3  Washb.  Real  Prop.  (4tli  ed,) 

440  et  seq. 
*ZearingY.  Ruber,  74  111.  409;  Farnsioorth  v.   Taylor,  9  Gray,  166;  Badgers 

V.   Parker,  9  Gray,  445;   Kirkpatrick  v.  Bi'own,   59  Ga.  450;  Goddard, 

Easem.   (Bennett'.s  ed.)  95;   Washb.  Easem.   (3d  ed.)  96;   Livingston  v. 

Mayor,  8  Wend.  98;  2  Smith,  Lead.  Cas.  (7tli  Am.  ed.)  154;  Fox  v.  Union 

Sugar  Refinery,  109  Mass.  292;  Child  v.  Chappell,  9  N.  Y.  246,  257. 
^Woodyer  v.  Hadden,  5  Taunt.  137. 
^Diedrich   v.  Northwestern  XT.  B.   Co.  43  Wis.  248;   Preston  v.  Navasota,  34 

Tex.  684. 
^Keating  v.  Korfhage,  88  Mo.  534,  4  West.  Rep.  569. 
•'Euling  v.  Chester,  19  Mo.  App.  607,  2  West.  Rep.  175. 
^Wiseman  v.  Lucksinger,  84  N.  Y.  31;  Wheeler  v.  Beynolds,  66  N.  Y.  237; 

Thompmn  v.  McELarney,  83  Pa.  174;  Cronkhite  v.  Cronkhite,  94  N.  Y.  333; 

Washb.  Easem.  30;  Butt  v.  Napier,  14  Bush  (Ky.)  39;  Dempsey  v.  Eipp, 

61  N.  Y.  463;  Huff  v.  McCauley,  53  Pa.  306;  Legg  v.  Horn,  45  Conn.  415; 

Meek  v.  Breckenhridge,  39  Ohio  St.  643;   United  States  v.  Baltimore  <&  0. 

R.  Co.  1  Hughes,  C.  C.  138. 


Chap.  X.]  EASEMENTS    CREATED   BY    LICENSE.  Ib5 

tures,  attach  only  to  liim  personally  and  cannot,  like  an  easement 
acquired  by  grant,  be  claimed  by  his  assignees  ; '  and  a  right  rest- 
ing on  a  license  determines  on  sale  of  the  estate.'  It  is  not  as- 
signable." 

In  Boot  V.  Wadhams,  107  N.  Y.  3S4,  9  Cent.  Eep.  874-,  the 
facts  were  these  :  About  1860,  Bradbury,  who  was  then  the  owner 
of  the  premises  now  owned  by  defendant,  on  which  there  is  a 
spring,  gave  Beebe,  the  owner  of  adjoining  premises,  parol  license 
to  lay  a  pipe  from  the  spring  to  his  (Beebe's)  house,  and  conduct 
water  therein,  for  an  annual  charge,  but  refused  to  sell  or  convey 
any  right  to  so  do.  Beebe  put  such  pipe  down  and  thereafter 
Merchant,  who  then  owned  the  premises  on  the  other  side  of 
Beebe's  land  from  Bradbury's,  being  the  premises  now  owned  by 
plaintiff,  with  the  parol  consent  of  Bradbury  and  Beebe  laid  a  pipe 
from  his  (Merchant's)  house  to  Beebe's  and  took  the  surplus  water 
coming  from  the  pipe  there.  In  18G5  Bradbury  became  the  owner 
of  said  premises  now  owned  by  plaintiff,  and  thereafter  a  tenant 
of  his,  by  his  direction,  connected  the  pipe  running  from  the  spring 
to  Beebe's  house  with  the  pipe  on  the  premises  now  owned  by 
plaintiff,  making  a  continuous  line,  with  a  branch  pipe  at  Beebe's 
house.  This  pipe  was  in  use  in  1870,  when  Bradbury  conveyed 
the  premises  now  owned  by  plaintiff  to  one  Rowley,  who  there- 
after conveyed  to  the  plaintiff ;  the  deeds  conveyed  the  premises 
"  with  the  appurtenances  thereto  belonging."  Bradbury  continued 
to  own  the  land  containing  the  spring  down  to  his  death  in  1882, 
when  it  was  conveyed  by  his  representatives  to  the  defendant,  who 
cut  off  the  pipe  which  had  been  in  use  up  to  that  time ;  where- 
upon plaintiff  brought  this  suit  to  enforce  her  alleged  right  to  the 
use  of  the  water  and  to  enjoin  interference  with  the  pipe.  The 
trial  judge  found  that  the  use  of  the  pipe  was  necessary  to  the  en- 
joyment of  the  plaintiff's  premises,  but  also  found  that  the  prem- 
ises could  have  been  supplied  by  a  well,  and  gave  judgment  for 
the  plaintiff.     On  appeal  this  was  reversed,  it  being  there  ruled, 

^BraMy  v.  Sharp,  9  N.  J.  Eq.  9;  2  Smith,  Lead.  Cas.  736. 

^Jackson  v.  Babcock,  4  Johns.  419;  Ilunlington  v.  Asher,  96  N.  Y.  612;  Wallia 
V.  Harrison,  4  Mees.  &  W.  538;  Hills  v.  Miller,  3  Paige,  254,  257,  3  N.Y. 
Ch.  L.  ed.  141,  144. 

^Wolfe  V.  Frost,  4  Sandf.  Ch.  72,  7  N.  Y.  Ch.  L.  ed.  1037;  Mumford  v.  Whit- 
ney, 15  Wend.  380;  Ex  parte  Coburn,  1  Cow.  568. 


186  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

upon  the  facts,  that  there  was  nothing  but  a  mere  parol  license 
proved  from  the  grantor  of  defendant,  and  that  the  right  to  take 
or  convey  water  from  the  defendant's  premises  did  not  pass  to  the 
plaintiff  by  the  use  of  the  word  "appurtenances"  in  any  of  the 
deeds  to  her  or  her  grantors,  nor  did  such  a  right  pass  as  an  ease- 
ment by  implication,  the  New  York  courts  treating  the  title,  "con- 
tinuous easements,"  as  equivalent  to  the  words  "self-perpetuating, 
independent  of  human  intervention ; "  '  whereas,  in  some  other 
States  and  in  England  water  supplied  from  a  tank  through  pipes 
is  held  to  be  a  continuous  easement." 

If  the  owner  having  the  enjoyment  of  water,  light,  air  or  way 
exclude  himself  from  the  use  by  his  voluntary  act,  he  cannot,  after 
the  use  has  become  valuable  to  someone  else,  or  would  by  its  re- 
sumed use  cast  a  burden  upon  another,  assert  his  right  to  the  use. 
In  Lampman  v.  Milks,  21  N.  T.  505,  the  original  owner  of  the 
land  across  which  a  stream  flowed,  diverted  the  stream  through  an 
artificial  channel  so  as  to  relieve  a  portion  of  the  land  formerly 
overflowed  by  the  stream ;  and  that  portion  of  the  land  he  after- 
wards conveyed  to  a  third  party.  The  court  held  that  neither  he 
nor  his  grantees  of  the  residue  of  the  land  could  return  the  stream 
to  its  ancient  bed,  to  the  damage  of  the  first  grantee.  The  land 
which  the  owner  conveyed  after  he  had  diverted  the  channel  of 
the  stream  would  have  become  worthless  by  being  overflowed  if 
he  or  his  grantees  of  the  remaining  portion  had  been  permitted  to 
return  the  stream  to  its  original  channel.  The  court  held  that 
under  such  circumstances  the  owner  in  conveying  the  premises 
thus  relieved  from  overflow  charged  the  remaining  portion  of  the 
premises  with  the  servitude  of  submitting  to  the  stream  running 
through  their  lands.  In  the  course  of  the  opinion  in  that  case  the 
learned  judge  distinguished  between  those  easements  which  are 
continuous,  that  is  self-perpetuating,  independent  of  human  inter- 
vention, and  those  which  are  termed  discontinuous  easements,  the 
enjoyment  of  which  can  be  had  only  by  the  interference  of  man, 
such  as  rights  of  way  or  a  right  to  draw  water.    In  regard  to  such 

1  See  also  Lampman  v.  Milks,  21  N.  Y.  505. 

^Kelly  V.  Dunning,  43  N.  J.  Eq.  62;  De  Luze  v.  Bradbury,  25  N.  J.  Eq.  70. 

See  JSeymouTY.  Lewis,  13  N.  J.  Eq.  439;   La.  Civ.  Code,  arts.  716-723; 

Polden  V.  Bastard,  4  Best  &  S.  258,  264;  Pyer  v.  Carter,  1  Hurl.  &  N. 

916;  Ewart  v.  Cochrane,  7  Jur.  N.  S.  925;  Washb.  Easem.  576. 


CJhap.    X.]  EASEMENTS    CREATED    BY    LICENSE.  187 

latter  kind  of  easements,  upon  a  severance  of  tenements  l)y  tlie 
owner,  they  only  pass  which  are  absolutely  necessary  to  the  enjoy- 
ment of  the  property  conveyed. 

In  Curtiss  v.  Ayrault,  47  N.  Y.  75,  the  same  general  doctrine 
is  held.  In  that  case  it  appeared  that  a  marsh  had  been  drained 
by  the  owner  of  the  whole  tract  by  digging  a  ditch  which  carried 
the  water  to  other  portions  of  the  tract,  where  it  made  a  perma- 
nent channel  in  which  the  water,  gathered  in  the  marsh,  flowed 
in  a  continuous  stream,  thus  mutually  benefiting  the  lands  drained, 
and  the  lands  through  which  a  supply  of  good  water  was  thereby 
-conveyed.  The  owner  of  the  property,  while  these  reciprocal  bene- 
:fit8  and  burdens  were  in  existence,  and  apparent,  divided  the  tract 
into  parcels  and  conveyed  the  parcels  to  different  grantees,  who 
contracted  with  reference  to  the  then  open  and  apparent  condition 
of  the  land  ;  and  it  was  held  that  such  condition  was  essential  to 
the  enjoyment  of  all  the  lands,  and  especially  to  that  portion  which 
by  the  digging  of  the  ditch  had  been  drained  and  made  good  avail- 
able land. 

So  where  one  excludes  his  own  air  and  light  by  a  solid  wall.' 
So  if  the  license  is  to  do  an  act  on  the  licensee's  land,  which  will 
destroy  the  enjoyment,  on  the  licensor's  land,  of  an  easement,  the 
licensor  cannot  revoke  the  license  after  the  act  is  done.  But  the 
doctrine  does  not  include  natural  easements,  as  the  diversion  of 
water  on  licensee's  land,  preventing  its  natural  flow  upon  the  li- 
censor's grounds,  thus  creating  an  easement  on  the  licensee's  land. 
The  doctrine  only  extends  to  enforcing  the  continuance  of  a  vol- 
untary surrender  of  an  easement  by  the  licensor  in  the  licensee's 
land.^  But  if  the  act  licensed  to  be  done  is  only  in  effect  a  tem- 
porary suspension  of  the  enjoyment  of  the  easement,  the  right  to 
the  latter  will  revive  on  the  effect  of  the  act  disappearing,  and  the 
act  cannot  be  repeated  except  on  a  new  license  therefor.'  Of 
course  the  act  licensed  can  only  act  upon  the  interest  of  the  licensee 
in  the  property  to  which  the  relinquished  easement  belongs.*     If 

^Dyer  v.  Sanford,  9  Met.  395;  Moore  v.  Bawson,  3  Barn.  &  C.  332. 

^Washb.  Easem.  727;  Liggins  v.  Inge,  7  Bing.  682;  Morse  v.  Copeland,  3 
Gray,  303;  Elliott  v.  Rhett,  5  Rich.  L.  405,  418,  419;  Davies  v.  Marn/iall 
9  Week.  Rep.  866;  Winter  v.  Brockwell,  8  East,  308;  Whit  net/  v.  Union 
R.  Co.  11  Gray,  359;  Hodgkim  v.  Farrington,  150  Mass.  19,  5Ii.  R.  A.  200. 

»  *Dyer  v.  Sanford.  9  Met.  395. 


188  IMPOSED   DUTIES,  PERSONAL.  [Part   I^ 

the  act  licensed  is  intended  to  be  executed  on  the  land  of  a  third 
person,  after  its  execution  the  license  cannot  be  revoked.'  Wliere 
the  way  is  claimed  by  license  or  permission  only,  the  burden  of 
establishing  it  is  on  the  party  asserting  it.* 

5.  By  Custom. 

Easements  may  have  their  origin  in  particular  customs,  the  re- 
mains of  the  local  customs  out  of  which  Alfred  first  collected  the 
rules  of  the  common  law.  These  customs  are  local  to  particular 
counties,  cities,  towns  and  manors,  and  are  not  extended  to  any 
large  division,  as  a  State  or  country,  as  the  public  cannot  claim 
an  easement  by  prescription  or  custom,  though  individual  inhabi- 
tants of  towns  may,  as  may  corporations.'  A  right  of  recreation 
by  custom  upon  the  land  of  another  cannot  exist  as  a  right  in  the 
public  generally,  but  must  be  confined  to  the  inhabitants  of  a  par- 
ticular district."  Even  if  riparian  owners  may  be  able  to  estab- 
lish a  private  right  of  way  over  a  non-navigable  stream,  or  a  right 
of  boating  for  recreation  for  themselves  and  their  friends  by  cus- 
tom, the  existence  of  such  a  right  or  custom,  if  established,  would 
not  entitle  the  public  to  boat  on  the  river,  or  support  the  claim 
that  it  was  a  highway.'  Custom  and  prescription  extend  gener- 
ally to  the  same  subject-matters,*  but  the  former  does  not  extend 
to  Q.  profit  d  prendre — that  is,  the  right  to  take  a  part  of  the  soil 
or  produce  of  the  land.'  These  local  customs  are  the  rules  which 
are  not  written,  and  which  men  have  used  for  a  long  time,  sup- 
porting themselves  by  them  in  the  things  with  respect  to  which 

^Gurthy.  Noonan,  10  Allen,  406;  Washb.  Easem,  729. 

^Perrin  v.  Oarfield,  37  Vt.  304;  Curtis  v.  Angier,  4  Gray,  547;  Barnes  v. 
Haynes,  13  Gray,  188;  Brace  v.  Yale,  10  Allen,  441;  Mainon  v.  Greigh,  37 
Conn.  463;  Hammond\.  Zehner,  21  N.  Y.  118;  Dreweit  v.  Sheard,  7  Car. 
&  P.  465. 

n  Bl.  Com.  67;  Strothery.  Lucas,  37  U.  S.  12  Pet.  446,  9  L.  ed.  1151;  Gin- 
cinnaiiv.  White,  31  U.  S.  6  Pet.  436,  8  L.  ed.  455;  Gurtis  v.  Keesler,  14 
Barb.  511;  Post  v.  Pearsall,  22  Wend.  435,  432;  Pearsall  v.  Post,  20  Wend. 
Ill,  128;  Manning  y.Wasdale,  5  Ad.  &  El.  758;  Gardiner  v.  Tisdale,  3 
Wis.  153;  Merwin  v.  Wheeler,  41  Conn.  14;  State  v.  Wilson,  42  Me.  9; 
Bodfish  V.  Fox,  23  Me.  95. 

4  ^Bourke  v.  Davis,  L.  R.  44  Ch.  Div.  110. 

^Cortelyon  v.  Van  Brundt,  2  Johns.  357. 

"'Huntington  v.  Asher,  96  N.  Y.  610;  Waters  v.  Ltlley,  4  Pick.  145;  Post  v. 
Pearsall,  22  Wend.  425. 


Chap.  X.]  EASEMENTS   CREATED   BY    CUSTOM.  189 

• 

they  have  exercised  them.'  Customs  must  be  local  and  affirmed  of 
something  beneficial  to  the  inhabitants  of  a  locality  ;  and  they  need 
not,  like  prescriptions,  have  a  lawful  beginnino^,  there  being  no 
one  capable  of  taking  the  privilege  by  way  of  grant ;"  immemorial ; 
continued — the  right  uninterrupted;  peaceable — acquiesced  in;  rea- 
sonable— no  sufficient  legal  reason  be  assignable  against  the  cus- 
tom ;  *  certain  —  ascertained  or  ascertainable ;  *  compulsory —  not 
left  to  one's  option  to  use  or  not  to  use,  and  consistent  with  each 
other,  for  if  not  they  could  never  have  secured  assent.  If  the 
custom  be  in  derogation  of  the  common  law  it  is  strictly  con- 
strued.' There  are  few  local  customs  existing  in  the  States  of 
.the  Union  upon  which  easements  can  be  rested. 

^Sirother  v.  Lucas,  37  U.  S.  12  Pet.  446.  9  L.  ed.  1151. 

^Lockwood  V.  Wood,  6  Q.  B.  50,  64;  Perley  v.  Langley,  7  N.  H.  233. 

'Merioin  v.  Wheeler,  41  Conn.  14. 

^Selby  V.  Robinson,  2  T.  R.  758. 

n  Bl.  Com.  76-79;  Anderson,  Law  Diet.  303;  Fitehv.  Baicling,  2H.  Bl.  393; 
Mounsey  v.  Isinay,  1  Hurl,  &  C.  729;  Lindsay  v.  Cusimano,  12  Fed.  Rep. 
506;  Bell  ^.Warden,  Wlllcs,  203;  Jones  v.Percival,5  Pick.  485;  Sowerby 
V.  Coleman,  L.  R.  2  Exch.  99;  Codman  v.  Evans,  5  Allen,  3i0. 


CHAPTER  XL 

LATERAL  SUPPORT  TO  SOIL  AND  PARTY-WALL. 

Sec.  18.  Beciprocal  Easement  of  Lateral  Support. 
Sec.  19.  Party-Wall. — Easement  of  Support. 

a.  Title  in  Party-  Wall  and  Right  to  Strengthen  and  Elevate. — 

Contribution  for  Repair. 

b.  Destruction  of  Party-  Wall. 

c.  Covenants  Respecting   Party-Walls. — Personal   Covenants  and 

Tliose  Running  with  the  Land. 

d.  Liability  for  Accidental  or  Negligent  Injury  in  Constructing y 

Elevating  or  Repairing  Party-  Wall, 

Section  18. — Reciprocal  Easement  of  Lateral  Sup- 
port. 

There  is,  as  incident  to  land,  in  its  natural  condition,  a  right  to 
support  from  the  adjoining  land;  and  if  land  not  subject  to  artifi- 
cial pressure  sinks  or  falls  away,  in  consequence  of  the  removal  of 
such  support,  the  owner  is  entitled,  not  to  the  cost  of  restoring  the 
land  to  its  former  condition  or  situation,  or  of  building  a  wall  to 
support  it,  but  to  the  diminution  in  value  of  the  land  by  reason 
of  the  acts  of  the  party  removing  the  support.* 

It  is  provided :  "  Si  quis  sepem  ad  alienum  prcedium  fixerity 
infoderitque.  terminum  ne  excedito :  si  maceriam,  ^edem  relin- 
quito:  si  vero  domum., jpedes  duos:  si  sepulchrum  aut  scrohem 
foderit,  quantum  jprofunditatis  hcd)uerint  tantutn  sjpatii  relirir 
quito :  siputeum,passus  latitudinem.r^  (If  anyone  builds  a  fence 
near  the  field  of  another  and  digs  up  the  meadow,  he  must  not  go 
beyond  the  boundary ;  if  he  digs  near  the  inclosure,  he  must  leave 
a  foot ;  if  near  a  house,  two  feet ;  if  he  digs  a  grave  or  trench,  he 
should  leave  as  great  a  space  as  their  own  width  is ;  if  a  well,  he 
should  leave  a  pace.)     The  Code  Kapoleon  likewise  recognizes 

^Moellerinff  v.  Evans,  121  Ind.  195,  6  L.  R.  A.  449;  3  Sutherland,  Dam. 
pp.  417.  418;  McGuire  v.  Orant,  25  N.  J.  L.  356;  Oilmore  v.  DriscoU,  122 
Mass.  199;  Humphries  v.  Brogden,  12  Q.  B.  739;  Northern  Transp.  Co.  v. 
Chicago,  99  U.  S.  635,  25  L.  ed.  336;  Mamer  v.  Lussem,  65  111.  484. 

»Just.  Dig.  lib.  X.  tit.  I.     Finium  Begundorum,  §  13. 


Chap.  XL]  '    RECIPROCAL    EASEMENT  OF  LATERAL   SUPPORT-  191 

the  support  to  which  the  owners  of  adjoining  lands  are  recipro- 
cally entitled.  Thus :  "  He  who  causes  a  well  or  a  cesspool  to  be 
dug  near  a  wall,  partition  or  not;  he  who  wishes  a  chimney  to  be 
built  there,  or  a  hearth,  or  oven,  or  a  kiln  ;  to  build  a  stable  against 
it,  or  to  form  against  such  wall  a  magazine  of  salt,  or  a  heap  of 
corrosive  substance, — is  obliged  to  leave  the  distance  prescribed 
by  particular  regulations  and  usages  on  subjects,  or  to  form  the 
works  prescribed  by  the  same  regulations  and  usages,  in  order  to 
avoid  injury  to  his  neighbor."* 

On  the  subject  of  easements  of  lateral  support  it  was  resolved 
by  the  judges  in  Palmer  v.  Fleshees^  1  Sid.  167,  where  the  action 
was  for  stopping  up  lights,  that  if  a  man,  being  seised  of  land, 
leases  forty  feet  to  A  to  build  a  house  thereon,  and  forty  feet  to 
B  for  a  like  purpose,  and  one  of  them  builds  a  house  and  then  the 
other  digs  a  cellar  upon  his  land  which  causes  the  wall  of  the  first 
adjoining  house  to  fall,  no  action  will  lie,  for  everyone  may  deal 
with  his  own  to  his  best  advantage.  But,  semhle,  it  would  be 
otherwise  if  the  wall  or  house  were  an  ancient  one.  That  if  a 
man,  having  a  piece  of  land,  build  a  house  on  part  of  it  and  lease 
the  house  to  one,  and  the  other  part  of  the  land  to  another, 
neither  the  lessor  nor  anyone  claiming  under  him  can  stop  up  the 
lights,  for  otherwise  it  would  be  in  the  power  of  the  lessor  to 
frustrate  his  own  grant."  On  the  same  principle  it  is  ruled  that 
if  an  improvement  constructed  over,  under  or  upon  one  parcel 
of  land,  for  the  convenient  use  or  enjoyment  of  another  contigu- 
ous parcel,  by  the  owner  of  both,  be  open,  visible  and  permanent 
in  its  character,  and  of  such  a  nature  as  does  not  require  the  act 
of  man  to  perfect  or  indicate  its  use;  and  the  owner  alienate  the 
latter  parcel, — the  use  of  such  improvement  will  pass  as  an  ease- 
ment. And  so  a  devise  of  a  house,  access  to  the  second  story  of 
which  was  had  by  a  stairway  in  the  adjoining  house,  next  to  the 
partition  wall,  where  both  were  owned  by  the  testator,  carried  the 
right  to  the  use  of  the  stairway.'  And  in  Palmer  v.  Fleshees,  supra, 
it  is  said  :  '■^  Aliter^  if  the  land  adjoining  the  house  is  the  land  of  a 
stranger,  for  the  latter  may  build  on  his  own  land  and  the  owner 

'Code  Civil,  liv.  II.  tit.  IV.  chap.  ii.  art.  674. 

^United  States  v.   Appleton,  1  Sumn.   492;  Havens  v.    Klein,  51  How.   Pr. 

82;  Bennyson's  App.  94  Pa.  147. 
^EoweU  V.  EisUs,  71  Tex.  690. 


192  IMPOSED   DUTIES,  PERSONAL.  "  [Part  I. 

of  the  first  house  will  be  without  remedy,  unless  such  house  were 
an  ancient  house  and  the  lights  ancient  lights."  The  case  does  not, 
however,  say  what  length  of  time  will  constitute  a  house  or  lights 
"ancient,"  nor  does  it  touch  the  subject  of  presumption.  The 
first  question  involving  directly  the  subject  of  support  is  shortly 
stated  in  Selwyn's  Nisi  Prius,  Vol.  I.,  page  145,  from  the  manu- 
serij^t  of  Mr.  Jtistice  Lawrence.  In  Stansell  v.  Jollard,  1  Selwyn, 
N.  P.  435,  in  1803,  in  an  action  on  the  case  for  digging  so  near  a 
cable  under  the  house  of  the  plaintiff  let  to  a  tenant,  that  it  fell, 
Lord  Ellenborough  held  that  where,  as  in  the  case  before  the 
court,  a  man  had  built  to  the  extremity  of  his  soil  and  had  en- 
joyed his  building  above  twenty  years,  by  analogy  to  the  case  of 
lights,  etc.,  he  had  acquired  a  right  to  support,  or,  as  it  were,  a 
leaning  to  his  neighbor's  soil,  so  that  his  neighbor  could  not  dig  so 
near  as  to  remove  the  support,  but  that  it  was  otherwise  of  a 
house,  etc.,  newly  built."  This  case*  has  since  been  questioned  in 
the  case  of  Solomon  v.  Vintners  Co.^  4  Hurl.  &  N.  585,  28  L.  J. 
N.  S.  Exch.  370. 

In  Massey  v.  Goyner,  4  Car.  &  P.  161,  the  grievance  com- 
plained of  was  the  taking  down  an  adjoining  building  and  dig- 
ging the  foundations  of  the  new  building  to  be  erected  in  its 
place,  without  giving  due  and  proper  notice  to  the  plaintiff,  the 
owner  of  the  adjoining  house,  so  as  to  give  him  an  opportunity 
of  taking  precautionary  measures,  as  also  in  respect  of  negligence 
in  taking  down  the  first  building,  and  in  excavating ;  it  was  there 
held  by  Tindal,  Ch.  t/!,  that  if  the  defendants  had  used  reasonable 
and  ordinary  care  in  the  doing  of  the  work,  having  given  due 
notice  to  the  plaintiff,  they  would  not  be  answerable  in  point  of 
law  for  damage  caused  to  plaintiff's  premises. 

In  Brown  v,  Windsor,  1  Cromp.  &  J.  20,  which  was  an  action 
for  excavating  under  defendant's  wall,  on  which  the  plaintiff's 
house,  built  27  years  before,  rested,  the  complaint  was  of  negli- 
gence in  the  manner  in  which  the  work  had  been  carried  on,  be- 
sides which  there  was  proof  that  the  defendant  had  expressly 
authorized  the  resting  of  the  plaintiff's  house  on  his  wall. 

In  Dodd  V.  Holme,  1  Ad.  &  £1.  493,  the  question  on  which 
the  decision  turned  was  also  the  allegation  and  proof  of  negli- 
gence.    In  Peyton  v.  London,  9  Barn.  &   0.  729,  the  cause  of 


•Chap.  XL]      KECIPKOOAL    EASEMENT  OF  LATERAL    SUrPOKT.  193 

■action  relied  on  was  that  the  defendant,  by  taking  dowu  his  liouse 
adjoining  that  of  the  plaintijff,  without  shoring  up,  had  injured 
plaintiffs  liouse.  It  was  held  that  as  the  plaintiff  had  not  alleired 
or  proved  any  right  to  have  his  house  supported  by  the  defend- 
ant's house,  defendant  was  not  liable  for  what  had  happened. 
There  was  no  question  as  to  support  from  the  adjoining  soil  in 
Walters  v.  -Pfeil,  Moody  &  M.  362,  as  the  complaint  was  for 
negligence  in  taking  down  defendant's  house,  whereby  tlie  plain- 
tiff's house  was  injured. 

Wi/att  V.  Harrison,  3  Barn.  &  Ad.  871,  decided  that  the  owner 
of  a  house  recently  erected  on  the  extremity  of  his  land  could  not 
maintain  an  action  against  the  owner  of  adjoining  land  for  digging 
on  his  own  land  so  near  to  plaintiff's  liouse  that  the  house  fell 
down  ;  but  the  reason  given  is  that  the  plaintiff  could  not.  by  put- 
ting an  additional  weight  upon  his  own  land  and  so  increasing  the 
lateral  pressure  upon  this  land,  render  unlawful  any  operation  on 
the  defendant's  land  which  before  would  have  caused  no  damaire : 
and  the  court  intimated  in  their  opinion  that  an  action  would  be 
maintainable,  not  only  if  the  defendant's  digging  would  have 
made  plaintiff's  land  crumble  down,  unloaded  by  any  building, 
but  even  if  the  house  had  stood  20  years.  "Where  a  house  has 
been  supported  more  than  20  years,  by  land  belonging  to  another 
projDrietor,  with  his  knowledge,  and  he  digs  near  the  foundations 
of  the  house,  whereby  it  falls,  he  is  liable  to  an  action  at  the  suit 
of  the  owner  of  the  house.'  Althougli  there  may  be  some  diffi- 
culty in  discovering  when  the  grant  of  an  easement  in  respect  to 
a  house  is  to  be  presumed,  as  the  owner  of  the  adjoining  land 
cannot  prevent  its  being  built,  and  is  not  able  to  disturb  the  en- 
joyment of  it  without  most  serious  loss  or  inconvenience  to  him- 
self, the  law  favors  preservation  of  the  enjoyment  of  it,  acquired 
by  the  labor  of  the  claimant  and  acquiesced  in  by  another  who 
has  the  power  to  interrupt  it,  and,  as  on  the  supposition  of  a  grant, 
the  right  to  the  light  may  be  given  from  not  erecting  a  wall  to 
obstruct  it,  the  right  to  support  for  a  new  building  erected  near 
the  extremity  of  the  owner's  land  may  be  explained  on  the  same 
principle. 

The   Court  of  Exchequer,  in  Partridge  v.  Soott,  3  Mees.  & 

^Stansell  v.  Jollard,  1  Selwyn,  N.  P.  (11th  ed.)  457;  Hide  v.  Tliornboi-ough, 
2  Car.  &  K.  250. 
13 


194  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

W,  220,  concurred  in  the  law  above  laid  down  that  the  right  to 
support  of  the  foundation  of  a  house  from  adjoining  land  belong- 
ing to  anotlier  proprietor  can  only  be  acquired  by  grant,  and  that, 
where  the  house  was  built  on  excavated  land,  a  grant  is  not  to  be 
presumed  till  the  house  has  stood  20  years  after  notice  of  the  ex- 
cavation to  the  person  supposed  to  make  the  grant ;  but  nothing 
was  decided  excepting  the  right  to  support  which  land,  while  it 
remains  at  its  natural  state,  has  been  said  to  be  entitled  to  from 
the  adjoining  land  of  another  proprietor.  Some  land  of  the  plain- 
tiff's, not  covered  with  buildings,  likewise  sank  in  consequence  of 
defendant's  operations  on  his  own  land ;  but  the  court  directed  a 
verdict  to  be  entered  for  defendant,  and,  indeed,  the  whole  decla- 
ration seems  to  show  the  sinking  of  plaintiff's  land  was  consequen- 
tial upon  the  fall  of  the  house,  which  would  not  have  taken  place 
if  his  own  land  had  not  been  excavated.  The  judges  in  the  Ex- 
chequer Chamber  held,  upon  a  writ  of  error  from  the  Court  of 
Common  Pleas,  in  Chadwick  v.  Trower,  6  Bing.  N.  C.  1,  that  the 
mere  circumstance  of  juxtaposition  does  not  render  defendant, 
liable  if  he  pulls  down  his  wall  without  giving  notice  of  his  inten- 
tion to  the  owner  of  the  wall  which  rests  upon  it,  and  that  he  is 
not  even  liable  for  carelessly  pulling  down  the  wall  if  there  was 
notice  given  to  the  owner  of  the  adjoining  wall ;  but  this  does  not 
depend  upon  want  of  allegation,  or  prove  the  right  of  plaintiff  to 
have  the  wall  supported  by  defendants,  and  does  not  touch  the 
rights  or  obligations  of  conterminous  proprietors,  where  the  tene- 
ment to  be  supported  remains  in  its  natural  condition. 

Brown  v.  Rohins,  4  Hurl.  &  IT.  186,  was  an  action  for  exca- 
vating beneath  land  adjoining  plaintiff's  house  and  so  causing  th& 
fall  of  the  house  which  had  been  built  on  land  previously  exca- 
vated beneath  the  surface,  and  which  the  defendants  knew  to  have 
been  so  excavated.  Upon  the  express  finding  of  the  jury  that  the 
land  would  have  equally  sunk  if  no  building  had  been  superadded 
to  its  weight,  plaintiff  was  held  entitled  to  recover. 

In  excavating  near  a  modern  house,  if  the  mere  removal  occa- 
sions the  damage,  no  liability  is  incuri-ed,  however  negligently  the 
act  may  be  performed ;  but  if  the  manner  of  the  removal  extends 
the  act  beyond  the  limits  of  the  owner's  property  so  as  to  become 
a  trespass  upon  the  plaintiff's  land,  a  liability  is  incurred.* 

1  Gale,  Easem.  (5th  ed.  by  Gibbons)  446,  note. 


Chap.  XL]       RECIPKOCAL    EASEMENT    OF    LATERAL    SUPPOHT.  195 

In  this  country,  Thurston  v.  Hancock^  12  Mass.  221,  decided  in 
1815,  is  a  leading  American  case  on  the  subject  of  injury  to  ad- 
joining property  by  removal  of  the  soil  supporting  it.  The  plain- 
tiff in  that  case,  in  1S02,  bouglit  a  parcel  of  hind  upon  Beacon  Hill 
in  Boston,  bounded  on  the  west  by  lands  of  the  Town  of  Boston, 
and,  in  1804,  put  a  dwelling-house  thereon  with  a  rear  of  two  feet 
from  his  boundary,  and  its  foundation  15  feet  below  the  ancient 
surface  of  the  land.  The  defendants,  in  ISll,  took  the  deed  of  the 
adjoining  land  from  the  town  and  began  to  dig  and  remove  the 
earth  thereon,  and,  though  notified  by  plaintiff  that  his  house  was 
endangered,  continued  to  do  so  to  a  depth  of  45  feet,  and  within 
six  feet  of  plaintiff's  house,  and  thereby  caused  part  of  the  eartli 
on  plaintiff's  land  to  fall  aM'ay  and  slide  upon  the  defendant's  land, 
rendering  the  foundations  of  plaintiff's  house  insecure  and  tlie 
occupation  thereof  dangerous,  so  that  he  was  obliged  to  abandon 
it.  The  court,  upon  review  of  the  earlier  English  authorities, 
held  that  the  plaintiff  could  recover  for  the  loss  of  or  injury  to  the 
soil,  merely,  and  not  for  the  damage  to  the  house,  and  Chief  Jus- 
tice Parker,  in  delivering  the  judgment,  said :  "  It  is  a  common 
principle  of  the  civil  and  of  the  common  law  that  the  proprietor 
of  land,  unless  restrained  by  covenant  or  custom,  has  the  entii'e 
dominion,  not  only  of  the  soil,  but  of  the  spa,ce  above  and  below 
the  surface  to  any  extent  he  may  choose  to  occupy  it.  The  law, 
founded  upon  principles  of  reason  and  common  utility,  has  ad- 
mitted a  qualification  to  this  dominion  restricting  the  proprietor 
so  to  use  his  own  as  not  to  injure  the  property  or  impair  any 
actually  existing  rights  of  another.  '  SIg  uiere  tuo  ut  alienum 
nonlcedas.  .  .  .'  But  this  subjection  of  the  use  of  a  man's  property 
to  the  convenience  of  his  neighbor  is  founded  upon  a  supposed 
pre-existing  right  in  his  neighbor  to  have  and  enjoy  the  privileges, 
which  by  such  act  is  impaired.  ...  A  man  in  digging  upon  his 
own  land  is  to  have  due  regard  to  the  position  of  his  neighbor'^ 
land  and  the  probable  consequences  to  his  neighbor  if  he  digs  too 
near  his  line,  and  if  he  disturbs  the  natural  state  of  the  soil,  he 
shall  answer  in  damages  ;  but  he  is  answerable  only  for  the  natural 
and  necessary  consequences  of  his  act,  and  not  for  the  value  of 
the  house  put  upon  or  near  the  line  of  his  neighbor."  Plaintiff 
in  that  case  built  a  house  within  two  feet  of  the  westerly  line  of 


196  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

the  lot  in  a  town  where  those  who  should  hold  under  it  had  a 
right  to  build  equally  near  the  line  or  to  dig  down  into  the  soil 
for  any  other  lawful  purpose.  He  knew  also  the  shape  and  nature 
of  the  ground,  and  that  it  was  impossible  to  dig  there  without 
causing  excavations ;  he  built  at  his  peril ;  for  it  was  not  pos- 
sible for  him  merely  by  building  upon  his  own  land  to  deprive 
another  party  of  such  use  of  his  as  he  should  deem  most  advan- 
tageous. There  was  no  right  acquired  by  ten  years'  occupation 
to  keep  his  neighbor  at  a  convenient  distance  from  him.  It  was, 
in  fact,  damnum  ahsque  injuria.  Upon  the  facts  of  the  case  the 
court  held  plaintiff  was  not  entitled  to  recover  any  damages  for 
the  fall  of  his  house,  but  might  recover  for  the  injury  to  the  soil. 

The  law,  founded  upon  principles  of  reason  and  common  util- 
ity, has  admitted  a  qualification  to  the  absolute  dominion  of  the 
proprietor  of  land  over  it,  restricting  him  to  so  use  his  own  as  not 
to  injure  the  property  or  impair  any  actually  existing  right  of 
another.  The  unqualified  rule  that  for  any  injury  resulting  to 
the  soil  from  removal  of  the  natural  support  to  which  it  is  en- 
titled, by  means  of  excavations  on  an  adjoining  tract,  the  owner 
has  an  action  against  the  party  by  whom  the  mischief  is  caused,  is 
limited  to  injuries  caused  to  the  land  itself,  and  does  not  afford 
relief  for  damages  by  the  same  means  to  artificial  structures ;  and 
for  an  injury  to  buildings,  inevitably  incident  to  a  depression  or 
sliding  of  the  soil  on  which  they  stand,  caused  by  the  excavation 
of  a  pit  on  adjoining  land,  an  action  can  only  be  maintained  where 
want  of  due  care  and  skill  or  positive  negligence  in  the  method  of 
doing  the  act  is  attributed  to  it.  Liability  will  be  incurred,  how- 
ever, on  the  ground  of  negligence  in  not  taking  reasonable  care  to 
prevent  injury.* 

In  Panton  v.  Holland,  17  Johns.  92,  the  plaintiff  was  the  owner 

of  a  house  and  lot  on  Warren  Street  in  the  City  of  New  York, 

and  the  defendant,  in  erecting  a  house  on  the  lot  contiguous  to 

plaintiff's,  in  order  to  lay  the  foundation,  dug  some  distance  below 

the  foundation  of  plaintiff's  house,  in  consequence  of  which  one 

of  the  corners  of  plaintiff's  house  settled,  the  walls  were  cracked 

and  the  house  in  other  respects  injured.     Evidence  was  produced 

on  the  part  of  plaintiff  to  show  want  of  proper  care  and  skill  in 

^Panton  v.  Holland,  17  Johns.  92;  Lamia  v.  Holirook,  4  Paige,  169,  3  N.  Y. 
Ch.  L.  ed.  390.    See  also  ante,  p.  38,  note  1. 


Chap.  XI.]       RECIPROCAL  EASEMENT  OF  LATERAL  SUPPORT.  107 

the  persons  employed  by  defendant  to  lay  his  fonndation.  A 
number  of  witnesses  were  then  produced  on  the  part  of  defend- 
ant to  prove  that  a  due  degree  of  care  and  diligence  had  been 
employed  in  laying  his  foundation  for  the  purpose  of  preventing 
any  damage  to  plaintiff's  house.  The  jury  were  directed  to  find 
a  verdict  for  plaintiff  for  the  difference  in  the  value  of  the  house 
before  the  injury  and  afterwards.  This  was  held  to  be  incorrect ; 
that  there  should  be  no  recovery  unless  it  be  on  the  ground  of 
negligence  in  not  taking  reasonable  care  to  prevent  the  injury, 
and  this  was  a  question  of  fact  which  should  have  been  submitted 
to  the  jury. 

In  Foley  v.Wyeth^  2  Allen,  131,  the  decision  in  Thurston  v. 
Hancock,  sxijpra,  was  followed  and  affirmed.  And  the  court,  after 
stating  that  the  right  of  support  from  adjoining  soil,  for  land  in 
its  natural  state,  stands  in  actual  justice  and  is  essential  to  the  pro- 
tection and  enjoyment  of  the  property  and  as  a  right  of  the 
property  which  passes  with  the  soil  without  any  grant  for  the  pur- 
pose, said  :  "  It  is  a  necessary  consequence  from  all  these  principles 
that,  for  any  injury  to  his  soil  resulting  from  the  removal  of  the 
natural  support  to  which  it  is  entitled,  by  means  of  an  excavation 
of  the  adjoining  tract,  the  owner  has  a  legal  remedy  in  an  action 
at  law  against  the  party  by  whom  the  work  has  been  done  and  the 
mischief  thereby  occasioned.  This  does  not  depend  upon  negli- 
gence or  unskillfulness,  but  upon  the  violation  of  the  right  of 
property  which  has  been  invaded  and  disturbed.  This  unclassified 
rule  is  limited  to  injuries  caused  to  the  land  itself,  and  does  not 
afford  relief  for  damages  by  the  same  means  to  artificial  structures. 
For  an  injury  to  a  building  which  is  calculated  to  deprive  him  of 
his  right  to  the  soil  on  which  it  stands,  caused  by  the  excavation 
of  a  pit  on  adjoining  land,  an  action  can  only  be  maintained  where 
a  want  of  due  care  or  skill,  or  positive  negligence,  has  contributed 
to  produce  it ;  and  it  was  accordingly  adjudged,  if  the  defendant 
in  that  case  by  carting  away  the  earth  on  her  own  land  caused 
plaintiff's  land  to  fall  and  sink  into  the  pit  which  she  had  dug,  she 
was  liable  for  the  injury  to  the  soil  of  the  plaintiff  ;  but  that,  in 
the  absence  of  any  proof  of  negligence  in  the  execution  of  the 
work,  the  jury  could  not  take  into  consideration  as  an  element  of 
damages,  for  which  compensation  could  be  recovered,  the  fact  that 


198  IMPOSED    DUTIES,    PERSONAL.  [Part    I. 

the  foiindation  of  plaintiff's  house  had  been  made  to  crack  and 
settle,  although  the  weight  of  the  house  did  not  contribute  to  the 
sliding  or  crumbling  awaj'-  of  the  soil. 

As  the  cases  of  Brown  v.  Robins^  4  Hurl.  &  N.  186 ;  Hunt  v. 
Peake.  Johns.  Eng.  Ch.  705,  and  Stroyhan  v.  Knowles,  6  Hurl. 
&  IST.  454, — in  which  it  was  held  that  in  an  action  for  causing  the 
soil  to  sink,  which  would  have  sunk  if  there  had  been  no  building 
upon  it,  the  damages  recovered  might  include  injury  to  the  build- 
ings also, — are  directly  opposed  to  ThurstonY.  Hancock  and  Foley 
V.  Wyeth,  the  Supreme  Court  of  Massachusetts,  in  Gilmore  v. 
Driseoll,  122  Mass.  199,  refused  to  follow  the  English  rulings.  In 
that  case  from  the  evidence  the  natural  inference  is  that,  by  the 
operation  of  natural  and  ordinary  causes  upon  the  land  as  it  was 
left  by  the  excavations  of  defendant  and  which  he  took  no  pre- 
cautions to  guard  against,  part  of  the  soil  of  plaintiff's  land  slid 
and  fell  off,  and  for  the  injuries  so  caused  to  her  soil  it  was  held 
an  action  might  be  maintained,  but  that  she  could  not  maintain  an 
action  for  injury  to  her  fences  and  shrubbery,  because  her  natural 
right  and  her  corresponding  remedy  were  confined  to  the  land 
itself,  and  did  not  include  buildings  or  other  improvements  thereon. 
The  amount  of  recovery  was  restricted  to  the  loss  and  injury  to 
the  soil  alone,  and  she  was  not  permitted  to  recover  for  the  cost 
of  putting  her  land  into  and  maintaining  it  in  its  former  condi- 
tion, because  that  was  no  test  of  the  amount  of  damages,  nor  could 
she  recover  the  difference  in  market  value,  because  it  did  not  ap- 
pear that  that  difference  is  wholly  due  to  the  injury  to  her  natural 
rifflit  in  the  land,  but  it  might  depend  upon  the  shape  of  the  lot, 
upon  the  improvements  thereon  or  upon  other  artificial  circum- 
stances, which  have  nothing  to  do  with  the  natural  condition  of 
the  soil. 

If  one,  in  the  exercise  of  his  right  in  the  removal  of  his  own 
soil,  cause  injury  to  his  neighbor  through  his  negligence,  which 
consists  in  the  want  of  ordinary  care,'  he  will  be  liable."  It  is  the 
duty  of  one  about  to  make  an  excavation  upon  his  own  property, 

^Moody  V.  McClelland,  39  Ala.  45;  Charless  v.  Rankin,  22  Mo.  566. 
^Boothby  V.  Androscoggin  &  E.  R.  R.  Co.  51  Me,  318;  Dixon  v.  Wilkimon,  2 

McArth.  425;  Shafe7-  v.  Wilson,  4A  Md.  268;  Stevenson  v.  Wallace,  27  Gratt. 

77;  Austin  v.  Hudson  River  R.  Co.  25  N.  Y.  334;  Shrieve  v.  Stokes,  8  B. 

Mon.  453;  Quincy  v.  Jones,  76  111.  231.    See  also  ante,  p.  38,  note  1. 


•Chap.  XL]      KECIPROCAL    EASEilENT   OF  LATERAL    SUPPORT.  199 

that  may  cause  injury  to  adjoining  property,  to  give  seasonable 
notice,  in  order  that  the  owner  of  such  property  may  protect 
himself.*  The  owner  of  land,  on  making  an  excavation  on  his 
own  premises,  which  may  endanger  a  building  on  his  neighbor's 
land,  is  bound  to  use  reasonable  care,  and  will  be  liable  for  injuries 
to  his  neighbor's  property  resulting  from  his  negligence;'  but  he  is 
under  no  obligation  to  shore  up  his  neighbor's  house,  nor  is  there 
any  duty  arising  from  contiguity  merely  that  he  should  give  his 
neighbor  notice  of  his  intention  to  excavate  on  his  own  premises.' 
The  fact  that  an  excavation  is  done  by  an  independent  contractor 
for  the  owner  will  not  excuse  injury  to  an  adjoining  property  where 
the  statutory  requirement  has  been  neglected.* 

Where  land  has  been  sold  by  the  owner  for  the  express  purpose 
of  being  built  upon,  or  where,  under  other  circumstances,  a  grant 
may  reasonably  be  implied,  every  presumption  should  be  made, 
and  every  infei'ence  should  be  drawn,  in  favor  of  such  an  easement, 
short  of  presuming  a  grant  when  it  is  undoubted  that  none  has 
ever  existed.  The  presumption  of  reciprocal  easement  of  lateral 
support  may  reasonably  be  inferred  under  any  circumstances  from 
which,  at  the  present  time,  a  grant  would  properly  be  implied. 
Eut  in  the  absence  of  any  such  circumstances,  it  was  ruled  in 
Dalton  V.  Angus,  L.  E..  6  App.  Cas.  740,  that  there  is  no  form  of 
easement  in  which  the  doctrine  of  presumption  should  be  more 
sparingly  ai^plied  than  the  easement  of  lateral  support. 

This  easement  is  obviously  one  of  very  anomalous  character. 
In  every  other  form  of  easement  the  party  whose  right  as  owner 
is  prejudicially  affected  by  the  user  has  the  means  of  resisting  it, 
if  illegally  exercised.  In  the  case  of  so-called  "  affirmative  ease- 
ments "  he  can  bring  his  action  or  oppose  physical  obstruction  to 
the  exercise  of  the  asserted  right.  Even  in  the  case  of  another 
negative  easement,  and  which  is  said  to  approach  more  nearly  to 

^Lasala  v.  Holbrook,  4  Paige,  169,  3  N.  Y.  Ch.  L.  ed.  890;  Shrieve  v.  Stokes, 

8  B.  Mon.  453;  Massey  v.  Goyner,  4  Car.  &  P.  161;  Mnn  v.  Abelea,  35 

Kan.  85. 
^Dodd  V.  Holme,  1  Ad.  &  El.  493;  Walters  v.  Pfeil,  Mood.  &M.  362;  Masseyv. 

Ooyner,  4  Car.  &  P.  161;   Charless  v.  Rankin,  22  Mo.  566;  Humphries  v. 

Brogden,  12  Q.  B.  739;  Brown  v.  Windsor,  1  Cromp.  &  J.  20  ;  (Jhadwick 

V.  Trower,  6  Bing.  N.  C.  1. 
Worrity  v.  Ba^,  72  N.  Y.  307;  Trower  v.  Ghtidwick,  3  Bing.  N.  C.  334,  6 

Bing.  N.  C.  1. 
*Dorrily  v.  Bapp,  72  N.  Y.  307. 


200  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

this — that  of  light — the  analogy  entirely  fails,  for,  although  na 
action  can  be  brought  against  the  neighboring  owner  for  opening 
windows  overlooking  the  land  of  another,  there  is  still  a  remedy, 
however  rude,  of  physical  obstruction  by  building  opposite  to 
them ;  but  against  the  acquisition  of  an  easement  of  lateral  sup- 
port, the  adjoining  owner  has  no  remedy  or  means  of  resistance, 
unless,  indeed,  he  should  excavate  his  own  immediately  adjoining 
soil  while  the  neighboring  house  is  being  built  or  before  the  ease- 
ment has  been  fully  acquired,  for  the  purpose  of  causing  the  house 
to  fall.  But  it  may  happen  that  he  may  have  built  to  the  extrem- 
ity' of  his  own  land,  as  he  lawfully  might,'  and  may  require 
the  support  of  the  soil  to  uphold  his  own  house.  In  the 
mean  time  such  adjacent  owner  may  excavate  his  own  land 
for  such  purposes  as  he  sees  fit,  provided  he  does  not  dig 
carelessly  or  recklessly  ;  and  if  in  so  doing  the  adjacent  earth 
gives  way,  and  the  house  falls  by  reason  of  the  additional  weight 
thereby  placed  upon  the  natural  soil,  the  owner  of  the  house  is 
without  remedy.  This  doctrine  is  fully  supported  by  the  author- 
ities.'' For  the  right  of  lateral  support  to  land  does  not  extend  to 
buildings  placed  thereon ;  and  an  adjacent  proprietor  is  not  liable 
for  the  giving  way  of  the  earth  on  account  of  his  excavations,  if 
he  has  exercised  reasonable  care,  and  the  earth  would  not  have 
given  away  except  for  the  added  weight  of  the  buildings.* 
But  the  duty  of  care  in  doing  the  work  in  such  a  manner  as  not 
needlessly  to  injure  his  neighbor's  property  is  imposed  upon  the 
one  making  the  excavation."  This  duty  imposed  upon  the 
person  excavating  near  a  building,  to  exercise  due  care,  will 
under  some  circumstances  include  reasonable  notice  to  the  owner 
of  the  building  that  he  may  protect  his  property."  But  the 
one  making  the  excavation  is  not  required  to  shore  up  the  build 

^Partridge  v.  Scott,  3  Mees.  &  AV.  220;  Winn  v.  Aheles,  35  Kan.  85. 

^Moody  V.   McClelland,  39  Ala.  45;  Beard  v.  Murphy,   37  Vt.  99  ;    Charless 

V.  Rankin,  22  Mo.  566,  66  Am.  Dec.  644,  and  note,  649 ;  Lamia  v.  Hoi- 

brook,  4  Paige,  169,  25  Am.  Dec.  524. 
^Moellering  v.  Evans,  121   Ind.   195,  6  L.  R.   A.   449;  McGuire  v.  Orant, 

25  N.  J.  L.  356;  3  Sutherland,  Dam.  pp.  417,  418;  2  Washb.  Real  Prop. 

380. 

'^Baltimore  &  P.  R.  Co.  v.  Reaney,  42  Md.  117;  Panton  v.  Holland,  17 
Johns.  92;  Quincy  v.  Jones,  76  111.  281;  Charless  v.  Rankin,  22  Mo.  566. 

^Dorrity  v.  Rapp,  72  N.  Y.  307;  Dodd  v.  Holme,  1  Ad.  &  El.  493;  Pari- 
ton  V.  Holland,  17  Johns.  92;  FoUy  v.  Wyeth,  2  Allen,  131. 


Chap.  XT.]  PARTY-WALL. EASEMENT  OF    SUPPORT.  201 

ing,  nor  does  any  duty  arise,  from  contiguity  merely,  that  he 
should  give  his  neighbor  notice  of  his  intention  to  excavate  on 
his  own  premises.' 

In  Gilmore  v.  Driscoll^  122  Mass.  199,  the  doctrine  of  prescrip- 
tion in  lateral  support  for  buildings  is  criticised  as  having  no 
equitable  foundation,  no  right  being  asserted  that  one  can  legally 
meet  and  contest  during  the  period  of  prescription,^ 

Section  X^.—Fourty -Wall.— Easement  of  Support. 

The  courts  are  reluctant  to  admit  the  creation  by  parol  of  an 
easement  in  the  land  of  another  whicli  amounts  to  an  absolute 
taking  of  the  property  itself.  To  avoid  such  a  presumption  own- 
ers of  property  are  not  bound  at  their  peril  to  prevent  every  ille- 
gal encroachment  on  their  estates,  and  a  license  or  consent  to  one 
to  enter  on  another's  property  cannot  be  extended  by  inference  to 
justify  the  unlicensed  entry  of  others.  A  license  by  one  joint 
owner  of  land  to  dig  ore  therein,  only  extends  to  his  interest  in 
the  common  property,  and  will  not  justify  an  injury  to  the  entire 
property.*  Even  if,  by  reason  of  mistake  on  the  j^art  of  the  land 
owner,  buildings  are  erected  on  his  premises  by  his  consent,  he 
may  be  relieved  from  the  incumbrances  thus  created  where  they 
have  not  continued  for  twenty  years.*  A  parol  license  to  do  any 
act  on  the  land  of  another  does  not  trench  upon  the  policy  of  the 
law  which  requires  that  contracts  respecting  any  title  or  interest  in 
real  estate  shall  be  by  deed  or  in  writing.  It  gives  the  licensee  no 
estate  or  interest  in  the  land.  It  excuses  acts  done  which  would 
be  trespass,  or  otherwise  unlawful.  It  is  revocable  at  common  law 
not  only  at  the  will  of  the  owner  of  the  property  on  which  it  is  to 
be  exercised,  but  by  his  death,  by  alienation  or  demise  of  the  land 
by  him,  and  by  whatever  would  deprive  the  original  owner  of  the 

^Dorrity  v.  Rapp,  72  N.  Y.   307,   citing  Washb.   Easem.   444;   Trower  v 

Chadwick,  3  Bing.  N.  C.  334,  6  Bing.  N.  C.  1. 
^See  also  Napier  v.  Balwinkle,  5  Rich.  L.  311. 
^Omnha  O.  Smelt.   &  Refin.  Co.  v.  Tabor,  13  Colo.  41,  5  L.  R.  A.  236.     See 

Dyer  v.  Sanford,  9  Met.  395;  Murray  v.  Haverty,  70  111.  318;  McLeUen  v. 

Jenness,  43  Vt.  183  ;  Agnew  v.  Johmon,  17  Pa.  373  ;  Lowe  v.  Miller,  3 

Gratt.  205;  Burbankv.  Crooker,  7  Gray.  159;  Wheeler  v.  Wlieeler,  33  Me. 

347;  Coursiii's  Appeal.  79  Pa.  220;  W7iite  v.  Osburn,  21  Wend.  72;  Smyth. 

V.  Tankersley,  20  Ala.  212. 

*Proctor  V.  Putnam  Machine  Co.  187  Mass.  159. 


202  IMPOSED   DUTIES,  PERSONAL.  [Part   1. 

right  to  do  the  acts  in  question,  or  give  permission  to  others  to  do 
them/ 

The  principle  upon  which  it  has  been  held  that  a  party  plain- 
tiff, applying  for  equitable  relief,  will  be  refused  when  he  has 
unreasonably  and  without  proper  objection  permitted  another  to 
erect  any  structure  on  his  own  land  in  violation  of  some  contract, 
condition  or  agreement  which  the  plaintiff  is  entitled  to  enforce, 
has,  under  the  ruling  of  some  courts,  no  application  where  the 
structure  complained  of  is  on  plaintiff's  own  land,  and  where  the 
act  of  the  defendant  in  erecting  or  maintaining  it  is  an  invasion  of 
the  owner's  rights  therein."     A  house  built  upon  the  land  of  anoth- 
er without  permission  and  agreement  becomes  part  of  the  realty ; 
but  where  permission  is  first  obtained  and  agreement  had  to  that 
effect,  the  building  remains  personalty.'     That  which  a  licensee 
has  already  done  does  not  become  unlawful  by  the  revocation  of 
the  license,  if  it  be  an  act  done  on  the  premises  of  the  licensor, — 
as,  if  he  has  erected  a  structure  thereon  ;  but,  as  has  been  held  in 
some  cases,  he  loses  his  right  to  continue  to  maintain  it.*     But 
where,  at  the  time  of  the  revocation  of  a  parol  license,  or  of  notice 
to  remove  the  wall  of  a  building  erected  in  pursuance  thereof,  half 
of  tlie  old  foundation  wall  has  been  entirely  removed  and  the  li- 
censor's building  is  then  supported  by  the  needles  inserted  by  the 
licensee,  and  to  remove  them  at  the  time  would  endanger  the  lives 
of  the  workmen  and  allow  the  building  to  fall,  the  licensee  has  the 
right,  to  the  extent  that  the  walls  have  been  shored,  to  proceed 
and  build  up  the  new  wall,  and  for  that  purpose  to  enter  upon  so 
much  of  the  licensor's  lands  as  is  necessary.*     Where  defendants' 
grantor,  by  oral  agreement  with  plaintiffs'  grantor,  and  by  his  per- 
mission, built  up  a  garden  wall,  which  stood  principally  on  the 
lands  of  plaintiffs'  grantor  and  a  part  of  which  was  wholly  on  such 
land,  and  extended  his  building  by  letting  his  timbers  into  the  wall 
as  thus  built  up,  the  erection  of  the  superstructure  on  the  wall  and 

^Cook  V.  Stearns,  11  Mass.  533;  Stevens  v.  Stevens,  11  Met.  251;  Clapp  v.  Bos- 
ton, 133  Mass.  367. 

^Whitney  v.  Union  R.  Co.  11  Gray,  359.  See  ante,  pp.  181,  note  7,  187, 
note  2. 

^Harmon  v.  Kline,  52  Ark.  251. 

*Hodgkins  v.  Farrington,  150  Mass.  19,  5  L.  R.  A.  209.  But  see  ante,  pp. 
182,  notes  1,  2,  3,  6,  183,  Twte  1. 

^Ketchum  v.  Newman,  116  N.  Y.  422. 


Chap.  XI.]  PARTY-WALL. EASEMENT   OF    SUPPORT.  203 

insertion  of  the  timbers  therein  were  not  unlawful  wlien  con- 
structed, but  the  defendants  lose  the  right  to  continue  them  when 
the  plaintiffs'  land  becomes  the  property  of  another,  who  requests 
their  removal.  Although  defendants  offer  to  pay  plaintiffs  their 
damages,  caused  by  the  retention  of  the  wall  on  its  present  site, 
and  request  that  the  suit  may  be  dismissed  unless  the  plaintiffs 
grant  them  an  easement  in  the  wall  or  the  fee  to  one  half  the  soil 
upon  which  it  stands,  upon  payment  of  compensation  therefor,  the 
court  has  no  right  to  refuse  plaintiffs  the  relief  to  which  they  are 
entitled  if  they  decline  to  sell  their  land  or  to  grant  an  easement 
therein.  In  such  case,  if  defendants  do  not  remove  such  super- 
structure and  timbers  from  plaintiffs'  land,  the  plaintiffs  have  the 
right  to  do  this  or  have  it  done,  even  if  serious  injury  thereby  re- 
sults to  the  defendants.  The  fact  that  the  plaintiffs  will  suffer  no 
substantial  injury  if  the  wall  remains  as  it  is,  while  the  defendants 
will  suffer  heavy  loss  if  the  wall  is  i-emoved  and  they  are  thus 
compelled  to  take  out  their  timbers  and  erect  a  new  wall  on  their 
own  land  to  support  their  building,  cannot  give  them  a  right  to 
the  plaintiffs'  property'-  if  they  have  no  legal  interest  therein. 
The  plaintiffs  in  such  a  case  are  entitled  to  a  decree  authorizing 
them  to  remove  the  wall  so  far  as  it  stands  upon  their  land  and 
also  the  timbers  so  far  as  they  project  over  it,  but  at  their  own  ex- 
pense, as  these  structures  have  become  unlawful  only  since  the  li- 
cense under  which  they  were  erected  has  been  countermanded,  and 
to  an  injunction  forbidding  the  defendants  from  interfering  with 
them  in  so  doing,  unless,  within  a  brief  time  to  be  named  in  the 
decree,  the  defendants  shall  themselves  remove  the  wall  and  tim- 
bers. The  plaintiffs  are  not  bound  by  the  acquiescence  and  laches 
of  their  predecessors  in  title  so  that  they  cannot  maintain  such  a 
suit,  unless  such  acquiescence  and  laches  have  continued  for  twenty 
years.' 

Easements  by  prescription  in  land  are  only  to  be  acquired 
by  adverse  user  thereof  for  twenty  years.  But  the  reciprocal 
right  of  lateral  support  is  readily  assumed  in  case  of  a  wall  between 
the  estates  of  adjoining  owners,  which  is  used  for  the  common 
benefit  of  both.     Such  a  wall  is  presumed  to  be  a  party-wall  until 

^Eodgkins  v.  Farrington,  150  Mass.  19,  5  L.  R.  A.  209,     But  see  ante,  p.  182, 
and  notes. 


204  IMPOSED   DUTIES,    PEESONAL.  [Part    I. 

the  contrary  is  sliown;'  and,  in  the  absence  of  evidence  to  the  con- 
trary, a  party-wall,  with  its  flues  and  appurtenances  as  originally 
constructed,  is  presumed  to  have  been  so  constructed  by  common 
consent  at  the  common  expense  and  for  the  common  benefit  of  tho 
proprietors."  The  adjoining  owners  of  land  may,  by  mutual 
agreement,  regulate  the  use  and  enjoyment  of  their  respective 
properties,  with  a  view  to  the  permanent  benefit  and  advancement 
of  the  value  of  each.^  A  covenant  between  adjoining  owners  ta 
build  a  party-wall  creates  an  easement.*  It  is  a  covenant  which 
runs  with  the  estate.^  By  a  party-wall  we  must  understand  a  wall 
between  the  estates  of  adjoining  owners,  which  is  used  for  the 
common  benefit  of  both,  chiefly  in  suj^porting  the  timbers  used  in 
the  construction  of  contiguous  houses  on  such  estates.'  A  party- 
wall  is  a  structure  for  the  common  benefit  and  convenience  of  both 
the  tenements  which  it  separates,  and  either  party  may  use  it.'' 
Party  structure  is  a  structure  separating  buildmgs,  stores  or  rooms- 
which  belong  to  different  owners,  or  which  are  approached  by  dis- 
tinct staircases  or  separate  entrances  from  without ;  whether  the 
same  be  a  partition,  arch,  floor  or  other  structure.*  A  partj^-wall 
usually  stands  half  on  the  land  of  each,  but  the  land  underneath, 
as  well  as  the  wall,  may  be  owned  in  common,  or  by  one  of  the- 
parties.*  The  title  to  such  walls,  and  the  rights  and  liabilities  of 
the  co-owners,  are  subject  to  several  peculiar  rules,  which  differ, 
however,  somewhat  in  different  jurisdictions.  An  agreement  made 
between  adjoining  owners  in  relation  to  a  party -wall  erected  on  the 
division  line  of  their  lots  is  binding  upon  the  parties  and  creates  an 

'  Weyman  v.  Ringold,  1  Bradf.  61;  Matts  v.  Hawkins,  5  Taunt.  20;  Campbell  v. 

Mesier,  4  Johns.  Ch.  334,  1  N.  Y.  Ch.  L.  ed.  858.     See  Wolfe  v.  Frost,  4 

Sandf.  Ch.  73, 7iote. 
^  Weill  V.Baker,  39  La.  Ann.  1102. 
^Columbia  College  v.  Lynch,  10  N.  Y.  440;  Columbia  College  v.   ThacJier,  10 

Abb.  N.  C.  235. 
*Gibson  v.  Holden,  115  111.  199,  1  West.  Rep.  677;  Eeteltas  v.  PenfoU,  4  E. 

D.  Smith,  123. 
^Savage  v.  Mason,  3  Cush.  504;  Maine  v.  Cumston,  98  Mass.  317;  Standish  v. 

Lawrence,  111  Mass.  Ill;  Dorsey  v.  St.   Louis,  A.  &  T.  H.  R.  Co.   58  111. 

68;  Sterling  Hydraulic  Co.  v.  Williams,  66  111.  397;  Miiidger  v.  Baker,  5T 

N.  Y.  209. 
62  Washb.  Real  Prop.  5th  ed.  385. 
''Field  V.  Leiter,  118  111.  17,  6  West.  Rep.  54. 
8Stat.  18  and  19  Vict.  chap.  123,  §  3. 
^Fettretch  v.  Leamy,  9  Bosw.  525. 


■Chap.  XI.]  PAllTV     WALL. EASEMENT    OF    SUITORT.  205 

•equitable  cliarge,  easement  and  serv^itucle  upon  the  lots  huiltupon.' 
It  is  decided  that  if  a  party-wall  may  be  called  an  incumbrance  at 
all,  it  is  an  incumbrance  when  apparent — as  stone  steps  encroach- 
ing on  another's  sidewalk — in  the  same  sense  as  a  public  road,  of 
which,  as  it  affects  the  physical  condition  of  the  property,  the  pur- 
chaser must  take  notice;  such  an  incumbrance  would  not  be  within 
the  meaning  of  the  ordinary  covenant  of  title  or  of  quiet  enjoy- 
ment.' 

But  it  is  held  an  agreement  between  adjoining  owners  for  tlie 
•erection  of  a  party-wall,  who  made  it  a  covenant  running  with 
the  land,  is  a  breach  of  a  subsequent  conveyance  if  one  of  the 
owners  covenants  against  the  incumbrance ;  and  the  measure  of 
damages  is  the  depreciation  in  the  value  of  the  land,  considering 
that  the  agreement  created  actual  easements  or  servitudes.*  And 
so  an  agreement  compensating  the  owner  of  land  for  damages  for 
the  encroachment  thereon  by  a  party-wall  built  by  the  adjoining 
owner  legalizes  the  encroachment,  and  the  owner  having  subse- 
quently deeded  the  land  with  covenant  against  incumlirances  and 
special  warranty  to  one  ignorant  of  the  encroachment,  such  an 
encroachment  was  a  breach  of  the  covenant,  and  the  grantee  could 
recover  of  the  grantor  damages  therefor.*  Where  the  adjoining 
owner  acquiesces  in  the  construction  of  a  party-wall,  such  acquies- 
cence estops  him  and  those  claiming  under  him  from  afterwards 
objecting  to  the  method  or  materials  whereby  and  wlierewith  such 
wall  was  constructed ;  and  acquiescence  in  the  change  of  materials 
used  in  the  foundation  would  have  the  effect  to  alter  the  agree- 
ment  and  render  it  as  thus  changed  binding  on  one  receiving  a 
conveyance  of  the  lot  without  consideration  paid  to  the  person 
who  is  estopped  by  his  acquiescence.*  But  where  a  common  wall 
is  erected  by  tenants  for  years,  although  it  may  be  a  party-wall,  as 
between  themselves,  it  creates  no  easement  binding  on  the  owner 

^Keating  v.  Korfhage,  88  Mo.  524,  4  West.  Rep.  569;  Gibson  v.  Uolden,  115 

111.  199.  1  West.  Rei).  677;  Ruling  v.  Chester,  19  Mo.  App.  607,  2  West. 

Rep.  175. 
^Memmeri  v.  McKeen,  113  Pa.  315,  3  Cent.  Rep.  383;  Lampman  v.  Milks,  21 

N.  Y.  507;  Curtiss  v.  Ayrault,  47  N.  Y.  79;  Rogers  v.  i-imheimer,  50  N. 

Y.  646. 
^Mackey  v.  Harmon,  34  Minn.  168. 
^Edmunds'  App.  (Pa.  Jan.  17,  1887)  6  Cent.  Rep.  423. 
^Keating  v.  Korffiage,  88  Mo.  524,  4  West.  Rep.  569. 


206  IMPOSED   DUTIES,  PERSONAL.  [Part    I, 

of  a  reversionary  fee  that  can  prevent  such  owner,  when  the  term 
expires,  from  dealing  with  his  property  as  if  no  such  wall  had  been 
erected.  The  legal  rights  of  a  grantee  of  the  reversioner  are  ex- 
actly the  same.'  That  a  flue  is  constructed  in  the  lower  stories  of 
a  party-wall  in  that  half  of  it  which  is  on  the  side  of  one  property 
does  not  establish  exclusive  ownei'ship  in  the  flue  or  destroy  the- 
presumption  that  it  was  intended  for  the  common  use  and  benefit 
of  the  parties.^ 

In  most  of  the  States  the  rights  of  adjoining  owners  in  a  party- 
wall  are  regulated  by  statute.  Generally,  under  such  statutes,  when 
one  of  two  adjoining  owners  builds  a  party-wall,  he  retains  the 
ownership  of  what  he  has  placed  upon  another  person's  land  till 
he  shall  have  been  paid  for  it.  Upon  such  payment  the  other 
owner  acquires  property  in  that  portion  of  the  wall  with  the  right 
to  use  and  treat  it  as  a  party-wall  and  to  have  the  support  of  the 
other  half  of  the  wall.  The  same  property  rights  are  acquired  on 
the  same  terms  (that  is  to  say,  a  payment)  by  the  purchaser  of  one 
of  two  adjoining  lots  from  the  owner  of  both.  In  both  cases  the 
nature  and  extent  of  the  property  and  rights  of  the  two  owners 
are  governed  by  the  Building  Laws;  that  is  to  say,  they  own  it  as 
a  party -wall.*  Although  under  the  statutes  in  the  various  States  a 
party-wall  built  on  another's  land  is  not  therefore  incorporated  in 
such  land  but  still  remains  as  separate  property  belonging  to 
the  builder  till  payment,  yet  when  the  builder  owns  both  adjoining 
lots, — in  other  words  both  the  wall  and  the  land  on  which  it 
stands, — the  effect  of  the  relation  of  these  two  subjects  of  property 
thus  brought  together  by  himself  is  that  his  deed  conveying  the 
lands  must  be  considered  as  conveying  usque  ad  coelutn,  and  there- 
fore as  conveying  the  superstructure,  just  as  in  any  other  deed 
made  between  two  owners,  both  the  land  and  what  is  built  on  it 
is  construed,  unless  he  makes  an  express  reservation  of  the  latter. 
When  he  uses  a  common-law  conveyance  he  must  be  understood 
to  use  it  in  its  ordinary  sense  and  with  its  ordinary  effect.  Part 
of  a  wall  within  the  described  boundaries  of  a  lot  is  just  as  capable 
of  passing  by  mere  description  of  the  land  as  the  entire  house 

1  Webster  v.  Stevens,  5  Dner,  553. 

^  Weill  V.  Baker,  39  La.  Ann.  1103. 

^GoMschmid  v.  Starring,  5  Mackey,  582,  8  Cent.  Rep.  716. 


Chap.  XI.]  PARTY-WALL. — EASEMENT    OF    SUPTOKT.  2<>T 

would  be.  Indeed,  for  the  purpose  of  making  legal  title  to  one 
half  the  wall  and  the  rights  connected  with  it  under  tlie  Building 
Laws,  a  description  of  the  land  on  which  it  stands  is  a  perfectly 
proper  method.  The  consideration  paid  for  the  land  must  be  taken 
to  be  the  consideration  for  everything  wliich  was  conveyed  by  the 
deed,  including  the  half  of  the  party-wall.*  The  law  relating  to 
party-walls  is  no  invasion  of  the  right  of  ])roperty.  It  prescribes 
simply  a  rule  for  the  convenient,  economical  and  safe  enjoyment 
of  property  by  the  owner.'  Strictly  speaking  a  party-wall  is  one 
built  or  supposed  to  have  been  built  at  the  joint  expense  of  con- 
tiguous proprietors,  an  equal  portion  of  the  wall  usually  resting 
upon  the  property  of  each  proprietor,  the  whole  wall  belonging 
originally  to  the  neighboring  proprietors,  independently  of  the  di- 
viding line  between  the  lots.'  Such  party-wall,  however,  is  some- 
times erected  upon  property  owned  in  common,  or  it  may  be 
erected  entirely  upon  the  ground  of  one  of  the  contiguous  propri- 
etors, under  special  contract  to  that  effect.  Where  the  owners  of 
adjoining  lots  construct,  by  mutual  consent,  a  wall  partly  on  the 
lot  of  each  for  the  common  support  of  buildings  erected  by  them 
on  their  respective  lots,  a  id  the  same  is  used  as  a  wall  for  a  com- 
mon support  for  twenty  years,  such  wall  is  strictly  a  party-wall, 
within  the  meaning  of  that  term,  and  the  owner  of  each  house  has 
an  easement  in  the  portion  of  the  wall  standing  on  his  neighbor's 
land  for  its  support."  The  only  easement  attached  to  a  party- 
wall  is  that  of  support.*  The  owners  of  the  lots,  having  by  com- 
mon consent,  at  the  time  of  the  erection  of  the  wall,  and  by  its 
subsequent  uses,  appropriated  the  same  as  a  party-wall,  have  thus 
estopped  themselves  as  against  each  other  and  consequently  as 
against  the  grantees  of  either  from  denying  the  easement.'  So, 
also,  where  the  ow^ner  of  two  lots  erects  a  building  on  each  with  a 
common  wall  for  the  support  of  the  two  standing  partly  on  each 
lot,  a  conveyance  of  either  lot  by  the  original  lines  of  the  lot  con- 

^Goldschmidv.  Starring,  5  Mackey,  582,  8  Cent.  Rep.  716. 

^Barns  v.  Wilson,  116  Pa.  303,  8  Cent.  Kep.  456;  Emns  v.  Japne,  23  Pa.  34. 

3  Weill  V.  Baker,  39  La.  Ann.  1102. 

*  Webster  v.  Stevens,  5  Duer,  553.     See  McLaugMin  v.   Cecconi,  141  Jlass. 

252,  1  New  Eng.  Rep.  766. 
^Ingals  v.  Plamondon,  75  III.  118. 

*  Webster  v.  Stevens,  5  Duer,  553. 


208  IMPOSED   DUTIES,  PERSONAL.  [Part   1. 

veys  with  the  building  itself  an  easement  for  its  support  on  the 
portion  of  the  wall  standing  on  the  other  lot;  and  it  is  equally  true 
that  when  such  easement  of  support  exists  neither  owner  nor  occu- 
pant of  one  freehold  can  interfere  with  the  walls  to  the  detriment 
of  the  other  without  his  assent.'  Where  a  party  has  built  two 
houses  having  a  party-wall,  on  certain  premises,  and  afterwards 
sells  one  house  and  lot,  describing  it  as  "22  feet  front,"  without 
mentioning  any  starting  point,  it  is  proj)erly  measured  from  the 
middle  of  the  division  wall.*  A  common  owner  of  both  lots, 
having  expressly  appropriated  the  wall  as  a  party-wall,  is  estopped 
as  against  his  own  grantee  of  one  lot,  unless,  indeed,  by  the  terms 
of  his  grant,  the  covenant  is  expressly  or  impliedly  taken  away.* 

a.   Title  in  Farty -Wall  and  Right  to  Strengthen 
and  Elevate.— Contribution  for  Repair. 

Where  the  owner  of  two  adjoining  city  lots  built  a  house  upon 
each  lot,  separated  from  each  other  by  a  brick  wall,  one  half  of 
which  was  on  each  lot,  and  conveyed  the  lots  on  which  the  build- 
ings were  erected  to  different  persons,  the  wall  must  be  taken  to 
have  been  built  as  a  single  structure  and  granted  by  the  owner  of 
two  estates  to  constitute  the  wall  of  the  house  upon  each  estate. 
It  was  not  the  dividing  line  between  the  two  houses,  because  it 
was  a  part  of  each  house,  and  each  owner  had  an  equal  right  in 
the  whole  wall  with  the  other  owner.  The  estate  which  the  own- 
ers have  in  it  is  an  estate  in  a  party- wall,  and  the  rights  of  the 
owners  in  it  are  found  in  their  presumed  intention  in  the  mutual 
grant  of  a  party-wall  rather  than  by  classifying  it  with  other  estates 
and  deducing  its  qualities  from  the  name  given  to  it.  And  al- 
thouo-h  a  fee  will  not  be  implied  from  user,  where  an  easement 
would  secure  the  privilege  enjoyed,*  yet  there  is  an  implied 
grant  of  a  party-wall  in  houses  on  adjoining  lots  conveyed  by  a 
common  grantor,  when  the  boundary  line  is  described  by  courses 
and  distances  so  as  to  run  through  the  middle  of  the  wall  of  both 

^Eiio  V.  DelVeccMo,  4  Duer,  53;  Hieatt  v.  Morris,  10  Ohio  St,  523;  In^als  v. 

Plamondon,  75  111.  118. 
« Warfel  v.  Knott,  128  Pa.  528. 
^Webster  v,  Stevens,  5  Duer,  553. 
*G<mverneur  v.  National  Ice  Co.  57  Hun,  474. 


Chap.  XI.]  TITLE    IN    PARTY-WALL.  209 

houses.  It  is  immaterial  whether  the  buildings  are  conveyed  un- 
der the  description  of  the  lots  or  by  designation  as  buildings.' 

The  English  courts,  when  looking  at  the  common  interest  and 
right  of  the  parties, — they  sometimes  call  it  a  tenancy  in  com- 
mon,'' Sometimes  used  to  signify  a  wall  divided  longitudinally  into 
two  strips,  one  belonging  to  each  of  the  neighboring  owners,'  each 
moiety  being  subject  to  an  easement  in  favor  of  the  owner  of  the 
other  moiety,* — do  not  mean  that  either  party  can  have  partition  ; 
and  the  courts  of  New  York,  when  considering  the  rights  of  one 
owner  in  the  part  of  the  wall  on  the  land  of  the  other  owner, — 
they  say  that  each  owns  one  half  in  severalty  with  an  easement  in 
the  other  half,* — are  not  prevented  from  deciding  in  the  same 
case  that  each  can  take  down  and  rebuild  the  half  of  the  other,* 
nor  from  deciding  that  the  easement  is  not  an  incumbrance  upon 
either  estate,  but  a  benefit  to  each/  There  is  not  now  under  con- 
sideration the  freqaent  cases  where  the  rights  of  the  parties  are 
defined  by  special  terms  or  agreements,  but  the  simple  grant,  ex- 
press or  implied,  of  a  party-wall ;  and  this  is  a  grant  by  the  owner 
of  both  estates  or  the  mutual  grant  of  the  separate  owners,  of  rights 
in  a  wall  situated  on  both  estates.  What  these  rights  are  depends 
upon  the  presumed  intention  of  the  parties.  The  rights  of  the 
parties  are  such  as  the  law  implies  to  have  been  the  intention  of 
the  parties  from  the  grant,  expressed  or  implied  from  user  of  the 
wall  as  a  party-wall,  and  it  is  immaterial  whether  the  grant  is  by 
the  single  owner  of  both  estates  or  is  the  mutual  grant  of  several 
owners,* 

The  purpose  of  each  of  the  adjoining  owners  in  providing 
for  a  party-wall  is  the  same.     It  is  intended  to  form  part  of  a 

^Carlton  v.  Blahe  (Mass.  Sept.  4,  1890)  25  N.  E.  Rep.  83. 

*  Wiltshire  v.  Sidford,  1  Man.  &  Ry.  404;  Cubitt  v.  Porter,  8  Barn.  «&  C.  257. 

^Matts  V.  Hawkins,  5  Taunt.  20. 

*Waison  V.  Gray,  L.  R.  14  Ch.  Div.  192,  194. 

^Matts  V.  Hawkins,  5  Taunt.  20;  Cubitt  v.  Porter,  8  Barn.  &  C.  257;  Block  v. 

Isliam,  28  Ind.  37;  IngaU  v.  Plamondon,  75  111.  123;  Hendricks  v.  Stark,  37 

N.  Y.  108;  Eno  v.  Del  Vecchio,  4  Duer,  61;  Sherredv.  Ui«co,  4  Sandf.  480; 

Thompson  v.  Sumerville,  16  Barb.  473;  Partridge  v.  Gilbert,  15  N.  Y.  014; 

Brooks  V.  Curtis,  50  N.  Y.  639;  Joy  v.  Boston  Penny  Sav.  Bank,  115  Mass. 

60;  Goodrich  v.  Lincoln,  93  111.  359. 
^Partridge  v.  Gilbert,  15  N.  Y.  601. 
''Hendricks  v.  Stark,  37  N.  Y.  106.     See  ITaUe  v,  Paggi  (Tex.  June  19,  1888) 

1  L.  R.  A.  1 ;  Bertram  v.  Curtis,  31  Iowa,  46. 
*8ee  Webster  v.  Stevens,  5  Duer,  553;  Richards  v.  Rose,  9  Exch.  218. 
14 


210  IMPOSED   DUTIES,  PERSONAL.  [Part   I, 

building  on  his  land.  A  party-wall  is  as  beneficial  to  him  as  a 
several  wall,  and  it  is  no  detriment  to  him,  for  the  use  which  one 
owner  makes  of  it  as  a  wall  of  his  building  cannot  impair  the  use 
of  the  other.  In  effect,  each  owner  acquires  the  right  to  build  one 
half  of  his  wall  upon  his  neighbor's  land,  and  each,  contributing 
his  portion  of  the  expense,  has  a  right  to  an  equal  benefit  in  a  wall 
so  built,'  The  wall  is  a  substitute  to  each  for  a  separate  wall,  and 
there  can  be  no  implied  limitation  in  his  right  to  use  it  as  he  would 
use  his  several  wall,  except  that  he  shall  not  impair  its  value  to  his 
neighbor.  But  he  may  not  enlarge  the  wall  to  change  his  private 
residence  into  a  hotel,^  nor  remove  it  because  it  proves  to  be  on 
his  own  land  f  nor,  if  he  build  the  wall  higher,  may  he  extend 
his  material  over  the  whole  width  of  the  wall.*  "With  this  limi- 
tation, it  will  be  presumed  that  each  intended  it  for  all  uses  and 
purposes  to  which  the  wall  of  his  building  would  ordinarily  and 
properly  be  put.  That  presumption  is  for  the  advantage  of  both 
and  to  the  detriment  of  neither. 

The  case  of  Weston  v.  Arnold,  L.  E.  8  Ch.  App.  1090,  seems 
to  support  the  view  that  a  wall  may  be  a  party-wall  to  such  height 
as  it  belongs  in  common  to  two  adjoining  buildings,  and  cease  by 
implication  to  be  such  for  the  rest  of  its  height ;  but  this  decision 
is  opposed  to  the  weight  of  authority.  If  the  party-wall  cannot 
be  built  up,  neither  house  can  be  raised  without  building  a  new 
wall,  for  if  one  owner  could  lawfully  build  a  several  wall  upon  the 
part  of  the  wall  over  his  own  land,  it  would  not  be  a  right  of  prac- 
tical value.  He  could  not  build  on  it  a  sufiicient  wall.  It  is  not 
reasonable  to  suppose  that  each  party  intended  that  he  should  never 
use  the  wall  for  a  building  higher  than  the  one  that  should  be  first 
erected,  and  a  provision  to  that  effect  detrimental  to  both  parties 
and  beneficial  to  neither  cannot  be  presumed.  If  it  is  said  that 
one  owner  may  not  wish  to  use  the  wall  as  built  up,  and  may  pre- 
fer not  to  have  the  adjoining  building  higher  than  his  own,  the 
answer  is  that  that  is  a  particular  and  exceptional  circumstance, 

^Nalle  V.  Paggi{Tex.  June  19,  1888)  1  L.  R.  A.  1;  Field  v.  Leiter,  118  111. 

17,  6  West.  Rep.  54. 
^Musgrave  v.  Sherwood,  60  How.  Pr.  339. 
^ Henry  v.  Kf>ch,  80  Ky.  391 ;  Miller  v.  Brown,  38  Ohio  St.  547;  Schile  v.  Brok- 

hahus,  80.  K  Y.  614. 
*BlochY.  Isham,  28  Ind.  37;  Stedman  v.  Smith,  8  El.  &  Bl.   1;  Watson  v. 

Gray,  L.  R.  14  Ch.  Div.  192. 


Cliap.  XI.]  TITLE   IN    PARTY-WALL.  211 

which  cannot  be  presumed.  It  is  presumed  to  be  a  detriment  to 
the  owner  of  a  building  to  deprive  him  of  the  power  to  make  ad- 
ditions to  it,  and  grants  and  contracts  will  be  construed  on  that 
presumption  unless  it  is  controlled  by  their  terms.  JS^ot  only 
would  a  provision,  implied  in  a  grant  of  a  party-wall,  that  it  should 
not  be  carried  higher  than  as  originally 'constructed,  be  contrary 
to  the  interests  and  the  apparent  intention  of  the  parties,  but  it 
would  not  be  in  accordance  with  public  policy.  The  public  inter- 
est is  not  promoted  by  putting  impediments  in  the  way  of  erecting 
buildings,  and  the  law  will  not  be  swift  to  construe  the  acts  of 
parties  so  as  to  produce  that  effect.  But  a  party -wall,  under  build- 
ing regulations  which  allow  its  construction  by  one  party  without 
the  consent  of  the  other,  cannot  be  constructed,  against  his  will, 
with  windows  or  openings  which  overlook  the  servient  tenement.* 
The  owner  of  land  subject  to  the  servitude  of  a  party-wall  may 
compel  windows  and  openings  improperly  left  in  such  wall  to  be 
closed  in  such  a  manner  as  shall  render  the  filled-up  places  suitable 
for  support  and  for  all  the  purposes  contemplated  by  the  right  of 
joint  use ;  and  brick  work  used  in  closing  them  should  not  be  a 
mere  patch,  but  should  connect  with  the  joint  wall  in  the  usual 
manner  of  building  a  wall.*  The  question  of  the  right  of  one 
owner  of  a  party-wall  to  build  it  up  seems  to  have  been  very  sel- 
dom raised. 

In  Rindge  v.  Baker,  57  N.  Y.  209,  where  parties  had  agreed 
upon  the  building  of  a  party-wall,  and  one  had  purchased  materials 
and  prepared  to  build,  the  other  party  was  held  estopped  to  deny 
the  easement,  and  was  required  to  contribute  to  the  expense  where 
the  other  proceeded  to  complete  the  wall." 

Phillips  V.  Bordman,  4  Allen,  147,  discusses  the  right  in  a 
party-wall  as  an  easement,  and  there  is  certainly  nothing  in  the 
case  unfavorable  to  the  right  to  build  upon  the  wall. 

Sanborn  v.  Bice,  129  Mass,  387,  was  tort  for  breaking  and  en- 
tering the  plaintiff's  close  by  building  up  the  partition  wall  be- 
tween the  houses  of  the  plaintiff  and  defendant,  and  the  action 
was  sustained,  but  the  only  question  considered  in  the  opinion  was 

^Corcoran  v.  NaUor,  6  Mackey,  580. 

^Graves  v.  Smith,  87  Ala.  450,  5  L.  R.  A.  298;  Dauenehauer  v.  Da-ine,  51 
Tex.  480. 


212  IMPOSED   DUTIES,  PERSONAL.  [Part   I. 

whether  there  was  any  evidence  that  the  plaintiff  owned  to  the 
middle  of  the  wall. 

It  is  said  of  that  case  in  Quinn  v.  Morse,  130  Mass.  317,  322, 
that  "  so  much  of  the  wall  as  was  carried  up  by  the  defendant  on 
the  plaintiff's  land  was  not  as  wide  as  the  original  wall,  nor  was 
its  face  towards  the  plaintiff's  land  parallel  with  the  centre  line  of 
that  wall,  and  the  defendant  did  not  rely  on  any  right  to  carry  up 
a  party-wall  upon  the  plaintiff's  land,  but  on  the  plaintiff's  want 
of  title  in  the  land  itself."  Quinn  v.  Morse,  supra,  was  a  bill  in 
equity  to  restrain  the  defendant  from  building  up  a  partition  wall 
between  him  and  the  plaintiff.  The  plaintiff  had  conveyed  the 
estate  to  defendant's  boundary  on  the  middle  of  the  partition  wall. 
This  sale  was  in  pursuance  of  an  agreement  by  which  the  defend- 
ant agreed  to  pay  to  the  plaintiff  for  half  of  the  wall  what  it  was 
worth  to  the  defendant  for  building  a  store  on  the  land.  The 
court  says  that  the  intention  of  the  plaintiff  that  the  wall  should 
be  a  party-wall,  which  the  defendant  would  have  a  right  to  carry 
up  in  building  his  store,  was  manifested  by  the  agreement.  The 
agreement  was  only  to  sell  one  half  of  the  wall  for  what  it  should 
be  worth  in  building  a  store.  The  right  to  carry  up  the  wall  seems 
to  have  been  inferred  from  the  intention  in  the  agreement  that  it 
should  be  a  party-wall. 

In  McLaughlin  v.  Cecconi,  141  Mass.  252,  1  New  Eng.  Rep. 
^QQ,  the  whole  wall  was  on  the  plaintiff's  land  and  belonged  to 
bim,  and  no  question  in  regard  to  party- walls  arose. 

Brooks  V.  Curtis,  50  N.  Y.  639,  decides  that  one  owner  of  a 
party-wall  has  a  right  to  build  it  up.  So  either  owner  of  a  party- 
wall  may  increase  the  thickness,  length  or  height  of  his  own  part 
of  it,  if  he  can  do  so  without  injury  to  the  other  part.'  Either 
party  may  raise  it,  where  there  was  no  agreement  regulating  its 
heip-ht,  if  it  can  be  raised  without  interference  with  or  injury  to 
the  rights  of  the  other  party ;  but  if  the  original  agreement  was 
for  a  dead  wall,  there  can  be  no  windows  or  openings  in  the  part 
raised.* 

In  Partridge  v.  Gilbert,  15  N.  Y.  601,  in  which  it  was  decided 
that  one  owner  had  a  right  to  take  down  and  rebuild  a  ruinous 

^Andr(B  v.  Hazeltine,  58  Wis.  395. 
^Dauenehauer  v.  Devine,  51  Tex.  480. 


Chap.  XL]  TITLE    IN    PARTY-WALL.  213 

partj-wal],  the  wall  was  rebuilt  higher  than  before,  and  the  party 
rebuilding  was  held  not  liable.  It  seems  well  settled  that  one  owner 
of  a  party-wall  has  a  right  to  take  down  and  rebuild  it  when 
ruinous.' 

In  Campbell  v.  Mesier,  4  Johns.  Ch.  334,  Chancellor  Kent  de- 
cided that  one  owner  of  a  party-wall  who  had  rebuilt  it  could  re- 
cover contribution  from  the  other  owner.  But  where  the  wall  was 
destroyed  by  the  elements,  neither  was  obliged  to  rebuild,  or  to 
contribute  thereto,  even  if  he  used  the  new  wall  partly  erected 
upon  his  land." 

In  Standard  Bank  v.  Stokes,  L.  E.  9  Ch.  Div.  68,  it  was  said 
that  one  owner  of  a  party- wall,  where  the  Metropolitan  Building 
Act  did  not  apply,  had  a  right  to  lower  the  foundation  so  as  to 
give  him  a  sub-basement. 

In  Field  v.  Leiter,  118  111.  17,  6  West.  Eep.  54,  the  wall  was 
built  by  the  plaintiff,  one  half  on  adjoining  land.  Defendant 
bought  the  adjoining  land  and  an  agreement  was  made  between 
the  parties,  by  which  the  defendant  might  use  the  wall  as  a  party- 
wall  for  his  store,  ten  stories  high,  with  the  right  to  add  to  the 
height  of  it,  the  defendant  agreeing  to  straighten  the  wall  and 
foundations  by  necessary  additions  thereto  on  his  own  side.  It 
was  held  that  defendant  had  a  right  to  make  necessary  additions 
to  the  foundation  on  the  plaintiff's  side. 

Eno  V.  Del  Veochio,  4  Duer,  53,  decided  that  one  owner  might 
underpin  and  deepen  the  foundation,  and  raise  the  wall  higher  on 
his  own  land. 

Matts  V.  Hawkins,  5  Taunt.  20,  has  been  cited  as  deciding  that 
one  owner  of  a  party-wall  can  lawfully  take  down  an  addition  built 
upon  it  by  the  other  owner.  But  this  is  expressly  decided  under 
the  Building  Act,  14  Geo.  III.,  chap.  78,  which  regulated  the 
rights  of  owners. 

There  is  nothing  in  the  English  cases,  such  as  Cuhitt  v.  Porter, 
8  Barn.  &  C.  257 ;  Wiltshire  v.  Sidford,  1  Man.  &  Ry.  404;  Sted- 
mam,  v.  Smith,  8  El.  &  Bl.  1,  and  Watson  v.  Gray,  L.  R.  14  Ch. 
Div.  192,  in  which  owners  of  a  party-wall  are  called  tenants  in 

^Hieatt  v.  Morris,  10  Ohio  St.  523.     But  see  Potter  v.  White,  6  Bosw.  647; 
Eno  V,  DeL  Vecchio,  4  Duer,  53,  6  Duer,  17. 

^Slierred  v.  Cisco,  4  Sandf.  480;  Orman  v.  Day,  5  Fla.  385,  392.     See  Par- 
tridge V.  QiJhert,  15  N.  Y.  601. 


214  IMPOSED   DUTIES,  PERSONAL.  [Part  I. 

common,  and  wliicli  decide  that  tenancy  in  a  party-wall  has  some 
of  the  qualities  of  tenancy  in  common,  which  suggests  that  one 
owner  of  a  party-wall  for  the  lateral  support  of  buildings  can  have 
partition  of  the  wall,  or  cannot  carry  it  up  higher  than  it  may 
orio-inally  be  built,  for  the  purpose  of  using  it  as  the  wall  of  his 
building. 

The  limitation  upon  the  right  of  each  owner  to  use  the  wall 
as  the  lateral  wall  of  such  house  as  he  may  desire  to  erect  is  that 
he  shall  not  impair  the  value  of  the  wall  to  the  other  owner.     If 
one  owner  carries  up  the  wall,  the  addition  becomes  part  of  the 
party-wall  and  the  owners  have  equal  rights  in  it,  and  the  value  of 
the  wall  to  either  owner  cannot  be  thereby  impaired,  but  neither 
owner  has  a  right  to  so  use  the  wall  as  to  M^eaken  or  injure  it.' 
It  is  commonly  held  that  each  part  owner  may  certainly  increase 
the  height  of  his  half  of  the  wall,  or  so  much  as  stands  on  his  own 
land,  if  he  does  not  thereby  endanger  or  injure  the  wall,  he  being 
responsible  for  any  resulting  damage  occasioned  by  any  change  in 
the  structure  not  required  for  repairs.'      And,  according  to  the 
better  view,  as  supported  by  the  weight  of  authority,  each  pro- 
prietor has  the  lawful  right  to  increase  the  height  of  the  entire 
party-wall,  when  it  can  be  done  without  injury  to  the  adjoining 
building,  and  without  impairing  the  value  of  the  cross-easement 
to  which  the  neighboring  proprietor  is  entitled.'      A  clause  in  an 
agreement  obligating  the  defendant  to  strengthen  the  existing 
foundations  of  a  party-wall  separating  his  land  from  that  of  the 
complainant,  so  as  to  prevent  any  injury  or  damage  to  plaintiffs 
building  by  reason  of  defendant's  use  of  said  wall,  intends  that  it 
is  to  be  strengthened  in  the  ordinary  and  usual  mode  of  construct- 
ing party-wall  foundations  in  the  vicinage.*     In  an  action  for  dam- 
ages on  a  bond  in  proceedings  to  restrain  the  tearing  down  of  an 
alleged  party-wall,  by  a  proprietor  building  the  new  building,  evi- 
dence is  admissible  to  disprove  damages,  that  the  new  building 
erected  beside  the  old  wall  could  have  been  erected  without  any 
detention,  although  the  old  wall  was  still  standing.* 

^Phillips  V.  Bordman,  4  Allen,  147. 

^Andm  v.  Hazeltine,  58  Wis.  395. 

^Everett  v  Edwards,  149  Mass.  588,  5  L.  R.  A.  110;  Brooks  v.  Curtis,  50  N. 

Y.  639;  Block  v.  Isliam,  28  Ind.  37,  92  Am.  Dec.  295,  note. 
*Field  V.  Letter,  118  111.  17,  6  West.  Rep.  54. 
^Sensenig  v.  Parry,  113  Pa.  115,  4  Cent.  Rep.  48. 


Chap.  XL]  TITLE    IN    PARTY-WALL.  215 

Where  the  wife  of  the  owner  liad  a  separate  estate  in  a  lot,  and 
the  evidence  showed  that  her  husI)aTid  acted  as  her  agent  in  mak- 
ing an  agreement  to  arbitrate  as  to  the  cost  of  a  party-wall,  she 
must  be  regarded  as  a  feme  sole  and  his  acts  as  her  acts.  The 
agreement  and  the  completion  of  the  wall  being  the  principal 
thing,  it  is  competent  for  a  court  of  equity  by  any  proper  proceed- 
ing to  ascertain  its  cost  and  adjust  the  equities  in  the  case.  Judg- 
ment in  such  case  establishes  no  personal  lialjility  against  the  wife 
but  is  special  and  against  the  property  which  is  burdened  with  the 
equitable  charge  and  for  the  enforcement  thereof.'  An  equity 
court  may  enforce  contribution  or  a  person  may  be  restrained  in 
■equity  from  interfering  with  or  using  the  wall  of  another's  house, 
or  a  wall  which  has  been  maintained  by  him  for  thirty  years." 

Where  a  deed  recites  the  right  of  a  grantee  to  erect  and  maintain 
a  wall  on  an  adjoining  lot,  such  recitals  cannot  affect  rights  in  a 
wall  constructed  under  circumstances  different  from  those  therein 
provided  for.^  Whether  a  receiver  appointed  in  a  mortgage  fore- 
<3losure  suit,  to  receive  the  rents  of  the  mortgaged  premises,  should 
be  required  by  the  court  to  pay  the  expense  incurred  by  an  ad- 
joining owner  in  securing  an  unsafe  wall  on  the  mortgaged  prem- 
ises on  failure  of  the  owner  and  receiver  so  to  do,  is  discretionary 
with  the  court  appointing  the  receiver.*  Under  a  statute  author- 
izing it,  tlie  right  to  build  a  new  and  thicker  party- wall  involves 
and  includes  the  rights  to  demolish  the  old  wall,  to  establish  a  suf- 
ficient foundation  for  the  new  one,  to  disturb  the  neighbor's  en- 
joyment and  to  enter  upon  his  property  to  the  extent  necessary 
for  the  exercise  of  the  principal  right.  The  proprietor  who  exer- 
cises such  right  is  bound  for  every  exaggeration  of  the  necessary 
damages  which  he  could  by  diligence  have  averted.  He  is  bound 
to  reduce  to  a  minimum  the  injury  and  inconvenience  occasioned 
to  his  neighbor,  to  occupy  his  property  to  the  least  extent  and  for 
the  shortest  time  consistent  with  the  exercise  of  his  right,  and  to 
hasten  by  all  practicable  means  the  completion  of  the  work  and 
the  restoration  of  his  neighbor  to  the  full  enjoyment  of  his  own. 
He  is,  moreover,  bound,  at  his  peril,  to  replace  the  neighbor,  at 
the  end  of  the  work,  in  a  position  every  way  equal  to  that  which 

^Keating  v.  Korfhage,  88  Mo.  524,  4  "West.  Rep.  569. 

*  ^McLaughlin  v.  Cecconi,  141  Mass.  252,  1  New  Eng.  Rep.  766. 

*Iie  Maddock,  103  N.  Y.  630,  5  Cent.  Rep.  791. 


216  IMPOSED   DUTIES,  PERSONAL.  [Part    I. 

lie  occupied  at  its  beginning,  and  to  furnish  liim  a  new  wall  fit 
and  adequate  to  support  his  building.  ISTo  law  forbids  an  owner 
from  erecting  one  building  on  two  lots;  and,  although  his  old 
building  rested  only  on  one  lot,  yet,  if  he  proposes  to  erect  a  new 
one  on  two  lots,  he  may  do  so,  and  may  rest  it  on  an  old  party- 
wall,  if  sufficient,  or  may  demolish  it,  and  build  a  thicker  one. 
The  right  to  build  a  thicker  wall  includes  the  right  to  rest  it  on 
the  centre  of  a  sufficient  foundation  ;  and,  although  the  additional 
thickness  of  the  wall  itself  must  be  taken  from  his  own  soil,  the 
foundation  must  necessarily  extend  equally  on  each  side  from  the 
centre  of  the  wall.  When  one  proprietor  exercises  the  right  as  to 
a  party -wall  granted  by  statute,  his  neighbor  is  bound  to  bear, 
without  indemnity,  the  inconvenience  and  injury  consequent  there- 
on, so  far  as  they  are  inseparable  from  the  exercise  of  the  right.' 
Provisions  in  statutes  regarding  party-walls  requiring  the  consent 
of  the  co-proprietor  or  a  decision  of  judicial  experts,  in  certain 
cases,  do  not  apply  to  the  raising  or  reconstruction  of  a  party- wall. 
Provisions  restricting  the  right  of  one  co-proprietor  to  rest  a  wall  in 
common  more  than  nine  inches  on  the  land  of  his  neighbor,  apply 
to  the  wall  itself,  and  not  to  its  foundation,  which,  in  many  locali- 
ties, must  necessarily  be  wider  than  the  wall.  So  the  requirement 
that  the  wall  in  common  should  be  built  in  stone  or  brick,  applies 
only  to  the  wall  and  its  foundation  proper,  and  does  not  forbid 
the  use  of  heavy  timbers  to  make  a  firm  and  smooth  basis  on  which 
to  build  the  brick  foundation,  any  more  than  it  would  apj^ly  to 
wooden  piles  driven  for  the  same  purpose.* 

b.  Destruction  of  Party  -  Wall. 

Where  the  easement  in  a  party- wall  is  created  by  express  grant, 
the  destruction  of  the  wall  will  not  of  course  end  the  easement.* 
But  when  the  easement  was  apparent,  and  the  purchaser  was  held 
chargeable  with  the  existing  conditions,  and  therefore  estopped 
from  changing  them,  he  will  be  released  from  the  easement  when 
the  condition  is  changed  without  his  act.* 

1  "^Heine  v.  Merrick,  41  La.  Ana.  194. 

^Pope  V.  O'Hara,  48  N.  Y.  446.     See  Stevenson  v.  Wallace,  27  Gratt.  77. 

^Partridge  v.  Oilbert,  15  N.  Y.  601;  Orman  v.  Day,  5  Fla.  385;  Campbell  v. 

Mesier,  4  Johns.  Ch.  334;  Sherred  v.  Cisco,  4  Sandf.  480;  Hoffman  v.  Kuhn^ 

57  Miss.  746. 


Chap.   XL]  DESTRUCTION    OF   PAKTY-WALL.  217 

In  Brondage  v.  Warner^  2  Hill,  145,  the  defendant's  right  to 
use  and  occupy  the  wall  in  question  lay  in  grant.  The  deed  un- 
der which  the  defendant  in  ejectment  claimed  the  right  to  continue 
to  use  the  wall  granted  the  right  to  build  upon  and  occupy  it- 
That  had  been  done.  The  fire  which  had  destroyed  the  plaintiff's 
store  left  the  wall  standing,  which  was  occupied  by  the  defendant. 
It  still  answered  the  purpose  for  which  its  use  had  been  deeded, 
and  therefore  the  court  held  that  the  right  to  continue  to  use  it 
had  not  been  affected.  But  where  the  title  to  two  lots  is  severed 
by  their  conveyance  to  separate  persons,  the  purchaser  of  each  lot 
is  presumed  to  have  contracted  in  reference  to  the  condition  of 
the  property  at  the  time ;  and  the  openly  existing  arrangement  of 
a  party-wall  cannot  be  changed  so  long  as  it  stands  and  answers  its 
purpose.  It  was  made  a  party-wall  upon  the  severance  of  the  title, 
by  the  apparent  easement  and  the  description  of  the  boundary  line, 
but  the  whole  extent  of  the  qualification,  which  resulted  as  to  each 
lot  owner's  title,  was  the  easement  which  the  other  acquired  in  the 
wall  dividing  and  supporting  their  respective  buildings.  Each  was 
bound  to  preserve  the  existing  order  of  things  in  that  respect,  and 
neither  had  any  right  to  change  the  relative  condition  of  his  build- 
ing to  the  injury  of  the  adjoining  one.  The  party-wall  of  the  two 
buildings  was  an  open  and  visible  condition  of  the  ownership  of 
the  property ;  and,  in  legal  contemplation,  its  use  as  such,  while 
the  building  stood,  was  an  element  which  entered  into  the  contract 
of  the  purchaser,  and  which  charged  the  land  with  a  servitude. 
This  principle  of  obligation  is  asserted  in  several  cases.'  But 
upon  the  destruction  of  the  buildings  the  tenements  reverted  to 
their  original  or  primary  conditions  of  ownership.  Their  tenure 
was  no  longer  qualified  by  the  relative  rights  and  obligations 
which  previously  existed. 

In  the  early  case  of  Shewed  v.  Cisco,  4  Sandf.  485,  adjoining 
buildings  were  destroyed  by  fire,  and  nothing  was  left  of  a  party- 
wall  but  the  stone  foundation.  The  plaintiff"  rebuilt  on  his  lot ; 
and,  when  the  defendant  also  rebuilt,  he  made  use  of  the  wall  for 
his  buildings,  which  plaintiff  had  erected  on  the  old  foundation. 
Thereupon,  plaintiff  sued  to  recover  of  defendant  his  cout)-ibution 

^Heartt  v.  Kruger  (N.  Y.  June  3,  1890)  9  L.  R.  A.  135;  Lampman  v,  Milka, 
21  N.  Y.  507;  Curtiss  v.  Ayrault,  47  N.  Y.  79;  Rogers  v.  Sinsheimer,  50 
N.  Y.  646. 


218  IMPOSED   DUTIES,  PERSONAL.  [Part    I. 

towards  the  expense  of  the  erection,  and  failed  in  his  suit.  In  his 
opinion.  Judge  Sandford  held  that  the  agreement  under  which 
the  party-wall  had  been  built  related  to  that  wall  only ;  and  he  said 
"  that,  when  two  owners  of  adjoining  city  lots  unite  in  building 
two  stores  with  a  party-wall,  we  have  no  right  to  infer  from  that 
act  an  agreement  binding  upon  them,  and  their  heirs  and  assignees, 
to  the  end  of  time,  to  erect  another  like  party-wall  at  their  mutual 
expense  when  that  one  is  casually  destroyed,  and  so  on,  as  often  as 
the  new  one  shares  the  same  fate."  The  implied  agreement  that 
the  party- wall  existing  at  the  time  of  the  conveyance  of  the  two 
lots  by  their  common  owner  should  continue  in  its  use  and  occu- 
pation as  such  cannot  be  extended  so  as  to  relate  to  a  changed  con- 
dition of  things,  caused  by  the  casual  destruction  of  the  wall  and 
buildings. 

In  Partridge  v.  Gilhert,  15  K.  Y.  601,  Judge  Denio,  in  his 
opinion  upon  the  case,  approves  of  Judge  Sandford's  opinion  in  the 
case  cited.  He  holds  that,  upon  the  occurrence  of  a  state  of  affairs 
rendering  the  party-wall  useless  in  its  then  condition,  "the  mutual 
easements  have  become  inapplicable,  and  that  each  proprietor  may 
build  as  he  pleases  upon  his  own  land,  without  any  obligation  to 
accommodate  the  other."  The  facts  of  that  case  related  to  the 
right  of  the  tenant  of  a  building  to  recover  damages  for  injuries 
to  goods,  etc.,  occasioned  during  the  rebuilding  by  the  defendant 
of  a  division-wall.  The  case  turned  upon  the  necessity  for  the  re- 
moval of  the  old,  and  the  rebuilding  of  a  new,  wall.  But  the 
opinions  are  instructive  upon  this  subject,  however  unnecessary, 
in  that  respect,  to  the  decision  of  that  particular  case.  Yery  ap- 
propriately to  this  case.  Judge  Denio  remarked,  also,  in  his  opin- 
ion, that  "  in  the  changing  condition  of  our  cities  and  villages,  it 
must  often  happen,  as  it  did  actually  happen  in  this  case,  that 
edifices  of  different  dimensions,  and  an  entirely  different  charac- 
ter, would  be  required ;  and  it  might  happen,  too,  that  the  views 
of  one  of  the  proprietors  as  to  the  value  and  extent  of  the  new 
buildings  would  essentially  differ  from  those  of  the  other,  and  the 
division- wall  which  would  suit  one  of  them  would  be  inapplicable 
to  the  objects  of  the  other." 

In  Hoffman  v.  Kuhn,  57  Miss.  746,  it  is  ruled  that  where  houses 
having  a  party-wall  are  destroyed  by  fire,  leaving  the  wall  stand- 


Chap.  XI.]  COVENANTS    RESPECTING    PARTY-WALLS.  219 

ing,  the  easement  in  the  wall  ceases  and  either  owner  may  dispose 
as  he  pleases  of  his  part  of  the  land ;  and  in  Antom.archi'' s  Exr. 
V.  Eusscll^  63  Ala.  356,  it  is  said  that  in  case  the  party-wall  is  de- 
stroyed by  fire  there  is  no  implied  condition  to  contri])ute  toward 
rebuilding  it.  The  rule  which,  with  the  cessation  of  the  neces- 
sity for  the  existence  of  a  right,  abrogates  the  right  itself,  is  sup- 
ported by  the  reason  of  the  thing,  as  well  as  by  legal  principles. 
The  mutual  easements  existed  by  force  of  the  situation  at  the  time 
of  the  severance  of  the  ownership  of  the  two  lots,  and  with  the 
change  in  that  situation  produced  by  the  casual  destruction  of  the 
buildings,  the  reason  for  their  existence  ceased.  Tlienceforth  they 
were  inapplicable,  and  the  lands  were  free  for  the  lawful  uses  of 
their  owners.  The  easement  was  measured  in  its  extent  and  du- 
ration by  the  existence  of  the  necessity  for  it.  "When  the  neces- 
sity ceased,  as  it  did  by  the  destruction  of  the  buildings  and  wall, 
the  rights  resulting  from  it  ceased  also.' 

In  Holmes  v.  Goring^  2  Bing.  76,  that  principle  was  laid  down 
in  the  case  of  a  right  of  way.  "Where  the  easement  was  claimed  by 
a  purchaser  under  a  foreclosure  of  a  mortgage  describing  the  line 
as  running  through  the  centre  of  a  party-wall,  the  accidental  de- 
sti'uction  by  fire  of  the  party -wall,  as  to  the  maintenance  of  which 
there  has  been  no  grant  of  a  perpetual  right,  will  destroy  all  right 
in  either  party  to  claim  an  easement  in  the  property  of  the  other 
for  the  further  support  of  a  party-wall,  notwithstanding  some  por- 
tion of  the  foundation  of  the  old  wall  remains  standing.' 

c.  Covenants  Respecting  Party-Walls.— Personal 
Covenants  and  Those  Running  with  the 
Land. 

"With  a  very  few  exceptions  the  uniform  current  of  authorities, 
from  the  time  of  Webb  v.  Russell,  3  T.  R,  393,  to  the  present 
day,  requires  a  privity  of  estate  to  give  one  man  a  right  to  sue 
another  upon  a  covenant  where  there  is  no  privity  of  contract  be- 
tween them  ;  and  consequently  where  one  who  makes  a  covenant 
with  another  in  respect  to  land  neither  parts  with  nor  receives  any 

^Ogden  v.  Jennings,  62  N.  Y.  531. 

*Heartt  v.  Ki-uger  (N.  Y.  June  3,  1890)  9  L.  R.  A.  135. 


220  IMPOSED   DUTIES,  PERSONAL.  [Part    I. 

title  or  interest  in  the  land,  at  the  same  time  with  and  as  a  part  of 
making  the  covenant,  it  is  at  best  a  mere  personal  one,  which 
neither  binds  his  assignee  nor  inures  to  the  benefit  of  the  assignee 
of  the  covenantee,  so  as  to  enable  the  latter  to  maintain  an  action 
in  his  own  name  for  a  breach  thereof.'  Where  the  owners  of  ad- 
joining premises  make  an  agreement  whereby  one  is  to  build  a 
party-wall,  and  the  other,  when  he  shall  use  it,  is  to  pay  half 
its  cost,  it  is  a  personal  covenant,  and  creates  an  obligation  en- 
forceable only  by  the  covenantee  or  his  personal  representatives. 
It  is  not  a  covenant  which  runs  with  the  land.'  The  right  to  re- 
imbursement for  the  use  of  a  party-wall  is  personal  to  the  first 
builder,  and  does  not  pass  by  grant  of  the  lot.'  The  obligation 
of  all  contracts  is  ordinarily  limited  to  those  by  whom  they  are 
made  ;  and  if  privity  of  contract  is  wanting,  its  absence  must  be 
supplied  by  privity  of  estate.*  In  case  of  a  covenant  in  a  deed 
that  the  party-wall  of  any  building  hereafter  erected  may  be 
placed,  one  half  on  the  granted  premises  and  one  half  on  the  ad- 
jacent lot,  the  owner  of  the  adjacent  lot,  whenever  he  uses  it,  ta 
pay  one  half  of  the  cost,  his  liability  to  pay  rests  either  on  the 
covenant  in  the  deed  or  on  an  implied  assumpsit.*  A  party-wall 
agreement  made  by  the  owner  of  a  building,  and  not  the  owner  of 
the  land,  is  a  mere  chose  in  action,  the  right  to  which  is  in  the  for- 
mer, and  cannot  be  transferred  by  the  latter  upon  a  conveyance  of 
the  land."  It  goes  to  the  personal  representatives  of  deceased.' 
It  is  said  by  the  editors  of  Smith's  Leading  Cases  in  the  notes  to 
Spencer's  Case,  Vol.  1,  pt.  1  (7th  Am.  ed.),  p.  219:  "Whether  a 
covenant  will  or  will  not  run  with  the  land  does  not  so  much  de- 
pend on  whether  it  is  to  be  performed  on  the  land  itself,  as  on 

'  2  Washb.  Real  Prop.  (4th  ed.)  284. 

^Elding  v.  Chester,  19  Mo.  App.  607,  2  West,  Rep.  175;  Oibson  v.  ITolden,  115 

111.  199,  1  West.  Rep.  677.     See  Hart  v.  Lyon,  90  N.  Y.  663;  Davids  v. 

Harris,  9  Pa.  503. 
^Cole  V.  Hughes,  54  N.  Y.  445.     See  Todd  v.  Stokes,  10  Pa.  155;  Gilbert  v. 

Drew,  Id.  219;  Davids  v.  Harris,  9  Pa.  503;  Bloch  v.  Isham,  28  Ind.  37; 

Coffin  V.  Talman,  8  N.  Y.  465;  Curtiss  v.  White,  Clarke,  Ch.  389. 
*Spencer's  Case,  5  Coke,  *16,  29,  1  Smith,  Lead.  Cas.  *137;  Webb  v.  Bussell,  3 

T.  R.  393;  Hurd  v.  Curtis,  19  Pick.  459. 
^Richardson  v.  Tobey,  121  Mass.  457. 
'^McDonnell  v.  Culver,  8  Hua,  155  ;  Qihson  v.  Holden,  115  111.  199,  1  West. 

Rep.  677. 
"^Ruling  v.  Chester,  19  Mo.  App.  607,  2  West.  Rep.  177. 


Chap,  XI.]  COVENANTS    RESPECTING   PARTY-WALLS.  221 

whether  it  tends  directly  or  necessarily  to  enhance  its  value,  or 
render  it  more  beneficial  or  convenient  to  those  by  whom  it  is 
owned  or  occupied;  for  if  this  be  the  case  every  successive  as- 
.signee  of  the  land  will  be  entitled  to  enforce  the  covenant ;"  and 
the  same  authority  also  says,  p.  217  :  "  When,  however,  the  cove- 
nant relates  to  matters  collateral  to  the  land,  its  operation  will  be 
confined  strictly  to  the  original  parties  to  the  agreement,'" 

A  covenant  runs  with  the  land  when  the  liability  for  its  perform- 
ance or  the  right  to  enforce  it  passes  to  the  assignee  of  the  land 
itself,  A  covenant  is  said  to  run  with  the  reversion  when  the  li- 
ability to  perform  it  or  the  right  to  enforce  it  passes  to  the  as- 
signee of  the  reversion."  All  covenants  which  relate  to  land  and 
are  for  its  benefit  run  with  it  and  may  be  enforced  by  each  suc- 
cessive assignee  into  whose  hands  it  may  come  by  conveyance  or 
assignment,*  When  the  liability  for  its  performance  or  the  right 
to  enforce  it  passes  to  the  assignee  of  the  land  itself,  it  is  a  cove- 
nant running  with  the  land;  and  when  the  liability  to  perform  it 
or  the  right  to  enforce  it  passes  to  the  assignee  of  the  reversion,  it 
is  a  covenant  which  runs  with  the  reversion.*  A  covenant  which 
runs  with  the  land  may  be  enforced  by  each  successive  assignee 
into  whose  hands  it  may  come  by  conveyance  or  assignment,* 
When  a  covenant  is  not  of  such  a  nature  as  the  law  permits  to  be 
attached  to  the  estate  as  a  covenant  running  with  the  land,  it  can- 
not be  made  such  by  agreement  of  parties,'  There  is  a  wide  dif- 
ference between  the  transfer  of  the  burden  of  a  covenant  runnine* 
with  the  land  and  of  the  benefit  of  the  covenant ;  or,  in  other 
words,  of  the  liability  to  fulfill  the  covenant  and  of  the  right  to 
^xact  its  fulfillment.  The  benefit  will  pass  with  the  land  to  which 
it  is  incident,  but  the  burden  or  liability  will  be  confined  to  the 

'See  Wiggins  Ferry  Co.  v.  07iio  &  M.  E.  Co.  94  111.  95. 

"^Borsey  v.  St.  Louis,  A.  &  T.  H.  B.  Co.  58  111.  67;  Spencefa  Case,  1  Smith 

Lead.  Cas,  *137;  Brewer  v.  Marshall,  18  N.  J.  Eq.  337, 
^Sterling  Hydraulic  Co.  v.  Williams,  66  111.  397;  1  Smith,  Lead,  Cas,  Hare  & 

W.  notes,  173, 
*Dorsey  v.  St.  Louis,  A.  &  T.  ff.  R.  Co.  58  111.  67;  Spencer's  Case,  1  Smith, 

Lead.  Cas.  137;  Brewer  v.  Marshall,  18  N.  J.  Eq.  337. 
'•Sterling  Hydraulic  Co.  v.  Williams,  66  111.  397. 
■^Gibson  v.  Holden,  1  West.  Rep.  677,  115  111.  199;  Masuryv.  So^ithicorth,  9 

Ohio  St.  340  ;  Olenn  v.   Canhy,  24  Md.  127;  1  Washb.  Real  Prop  438 ; 

Brewer  v.  Marshall,  18  N.  J.  Eq.  337,  19  N,  J,  Eq.  537;  1  Smith,  Lead. 

Cas,  (7th  Am,  ed,)  168,  notes. 


222  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

original  covenantor,  unless  the  relation  of  privity  of  estate  or  ten- 
ure exists  or  is  created  between  the  covenantor  and  covenantee  at 
the  time  when  the  covenant  is  made.'  As  no  such  privity  of  es- 
tate or  tenure  often  exists  between  the  contracting  parties  when 
the  agreement  for  a  party-wall  is  made,  it  is  quite  clear  from  the 
authorities  that  the  action  for  contribution,  if  one  at  law,  must 
often  fail."  There  is  no  rule  of  law  which  can  extend  a  sale  of 
lands  to  a  sale  of  choses  in  action.' 

In  Cole  V.  Hughes,  54  K.  Y.  445,  the  contract  was  in  writing, 
and  stipulated  that  whenever  Yoorhees,  his  heirs  or  assigns,  should 
use  the  wall,  he  or  they  should  pay  to  Dean,  who  was  to  build  it, 
one  half  of  the  value  of  the  part  so  used.  The  wall  was  built,  and 
the  agreement  recorded.  Yoorhees'  lot  passed  by  several  mesne 
conveyances  to  the  defendant,  who  was  sued  by  Dean's  assignee  on 
the  contract.  It  was  held  that  Yoorhees'  contract  to  pay  the  value 
of  half  of  the  wall  when  used  was  a  personal  covenant  and  did  not 
run  with  the  land.  The  court — all  concurring — reason  as  follows: 
"  Dean's  right  to  compensation  was  in  no  way  charged  upon  the 
Yoorhees  lot.  There  was  therefore  no  privity  of  estate  between 
Yoorhees  and  Dean.  There  was  simply  privity  of  contract  be- 
tween them,  and  upon  that  relation  could  Dean  enforce  the  cove- 
nant ?  Upon  such  a  state  of  fact  it  is  too  clear  to  be  doubted  that 
the  burden  of  the  covenant  did  not  run  with  the  Yoorhees  lot. 
.  .  .  The  obligation  of  all  contracts  is  ordinarily  limited  to 
those  by  whom  they  are  made,  and  if  privity  of  contract  be  dis- 
pensed with,  its  absence  must  be  supplied  by  privity  of  estate." 
The  court  also  decided  that  constructive  notice  by  the  record  of 
the  Yoorhees  covenant  could  not  affect  the  rights  of  the  parties. 
Yoorhees  having  only  made  a  personal  contract,  it  would  not  bind 
his  assigns  with  or  without  notice.  An  agreement  by  an  adjoining 
owner  to  pay  for  a  share  of  a  party-wall  when  he  should  have  oc- 
casion to  use  it,  does  not  run  with  the  land,  and  does  not  bind  a 

J  Cole  V.  Huglies,  54  N.  Y.  445. 

WannaJcer  v.  Biley,  14  Pa.  436;  Bell  v.  Bronson,  17  Pa.  363;  Ingles  v. 

Bringhurst,  1  U.  S.  1  Dall.  341,  1  L.  ed.  167  ;  Joy  v.  Bonton  Penny  Sav. 

Bank,  115  Mass.  60;  Weld  v.  Nichols,  17  Pick.  538;  Ooodrich  v.  Lincoln,  93 

111.   360;  Henry  Co.  V.  Winnebago  Drain  Co.  53  111.  299,  454;  Spencer's 

Case,  5  Coke,  16. 
^Henry  Co.  v.  Winnebago  Drain  Co.  52  111.  299,  454. 


Chap.  XI.]  COVENANTS    KESPECTING    PAKTY-WALL8.  223 

purchaser,  even  if  he  has  notice  of  it.'  "Where  parties  are,  by  the 
deed  under  which  they  take  title,  given  one  half  of  a  wall  as  a 
party-wall  when  or  upon  condition  of  making  payment,  and  where 
the  owner  of  one  lot  has  licensed  the  owner  of  the  adjoining  lot  to 
build  a  wall  for  himself  resting  one  half  of  it  on  each  lot,  and  re- 
serving the  privilege  of  thereafter  purchasing  one  half  the  wall,  as 
a  party-wall,  the  title  to  the  whole  wall  may  be  regarded  as  appur- 
tenant to  the  lot  of  the  builder,  and  so  passing  by  every  convey- 
ance of  it,  until  the  severance  of  the  half  by  the  payment  of  the 
purchase  money.  The  sale  of  the  half  of  the  wall  does  not  occur, 
nor  the  title  to  it  pass,  until  the  payment  is  made,  and  so,  neces- 
sarily, it  is,  constructively,  a  sale  by  the  assignee  of  so  much  of  the 
wall.  His  right  to  the  purchase  money  is  not  because  he  is  the 
assignee  of  a  covenant  running  with  the  land,  but  because  he  is 
the  vendor  of  so  much  of  the  wall.  Such,  in  effect,  are,  Wey- 
man's  Exrs.  v.  Hingold,  1  Bradf.  41;  Maine  v.  Cumston,  98  Mass. 
317;  Burloch  v.  Peck,  2  Duer,  98  ;  Keteltas  v.  Fen/old,  4  E.  D. 
Smith,  122,  and  Sharp  v.  Cheatham,  88  Mo.  448,  5  West.  Eep.  373. 
Where  the  deeds,  from  the  same  grantor  to  two  adjoining  owners 
of  land,  contain  each  the  provision  that  the  center  of  the  partition 
wall  of  the  house  first  erected  on  the  land  shall  be  placed  on  the 
division  line  between  the  separate  granted  premises,  and  the  party 
first  building  such  partition  wall  shall  be  entitled  to  receive  from 
the  other  party  using  the  wall  one  half  of  its  actual  cost,  this 
gives  mutual  and  equal  rights  in  the  party-wall  to  each  of  said  ad- 
joining owners  and  to  the  land  upon  which  it  stands,  and  the  pay- 
ment of  one  half  of  its  cost  is  not  a  condition  precedent  to  such 
right."  Describing  the  boundary  line  between  two  lots,  in  a 
mortgage  by  a  purchaser  of  both  given  upon  one  of  them  to  se- 
cure payment  of  purchase  money,  as  running  through  the  center 
of  a  party-wall  between  the  buildings  upon  them,  will  not  amount 
to  an  implied  grant  of  a  perpetual  easement  for  the  maintenance 
of  the  party-wall  as  such,  notwithstanding  its  destruction  by  fire,  in 
favor  of  one  claiming  title  through  a  foreclosure  sale  under  such 
mortgage.^ 

^mdle  V.  Paggi  (Tex.  June  19,  1888)  1  L.  R.  A.  1. 
^Matthews  v.  Dixey,  149  Mass.  595,  5  L.  R.  A.  103. 
^Heartt  v.  Kruger  (N.  Y.  June  3, 1890)  9  L.  R.  A.  135. 


224  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

In  a  proceeding  in  equity  or  where  the  rules  of  equity  may 
apply,  the  rule  prevailing  in  actions  at  law, —  as  to  the  neces- 
sity of  the  covenant  running  with  the  land,  or  as  to  the  necessity 
of  there  being  a  contemporaneous  privity  of  tenure  or  estate  in  or- 
der to  make  the  covenant  something  more  than  a  mere  personal  one, 
in  order  to  fasten  it  upon  the  land  mentioned  in  the  covenant, — 
does  not  prevail,  as  in  contemplation  of  a  court  of  equity  no  such 
privity  is  essential,  nor  that  the  covenant  should  run  with  the  land. 
In  order  to  successfully  invoke  equitable  interposition  in  cases  of 
this  sort,  all  that  is  necessary  is  a  valid  agreement  '  or  covenant, 
and  notice  thereof  to  the  purchaser."  The  effect  of  such  agree- 
ment under  seal  is  to  create  cross-easements  as  to  each  other  which 
bind  all  persons  succeeding  to  the  estates  to  which  the  easements 
are  appurtenant.'  Such  agreement  is  a  covenant  which  runs  with 
the  estate.*  Where  a  party-wall  is  built  equally  upon  the  walls  of 
adjoining  owners  by  one  of  them,  and  is  afterwards  used  for  a 
building  erected  by  the  other,  who  does  not  pay  to  the  owner  one 
half  the  value  thereof  as  required  by  the  statutes  in  force  in  most 
of  the  States,  but  conveys  the  lot  to  one  having  full  notice  of  the 
facts,  the  purchaser  is  liable  to  the  grantee  of  the  person  who  built 
the  wall  in  an  action  to  recover  half  the  cost  -thereof."  When  an 
agreement  and  notice  are  shown,  a  court  of  equity,  disregarding 
the  technical  rules  of  law,  and  looking  alone  to  the  substance  and 
justice  of  the  agreement,  will  enforce  it  as  well  against  the  pur- 
chaser with  notice  as  against  the  original  party.' 

Cases  are  quite  frequent  which  illustrate  and  fortify  this  posi- 
tion.    Some  of  them  do  so  in  direct  terms  by  adjudication;  others 

•  In  equity,  a  simple  contract  in  regard  to  a  party- wall,  partly  performed, 
■will  be  treated  as  a  covenant,  and  run  with  the  land.  Rome,  W.  &  0.  R. 
Co.  V.  Ontario  8.  R.  Co.  16  Hun,  445.  Where  a  parol  contract  has  been 
partly  executed,  parties  are  estopped  from  denying  the  existence  of  the 
easement  thereby  created.     Rindge  v.  Baker,  57  N.  Y.  209. 

^Keating  v.  Korfhage,  88  Mo.  524,  4  "West.  Rep.  509;  Gibson  v.  Holden,  115 
111.  199,  1  West.  Rep.  677;  Haling  v.  Chester,  19  Mo.  App,  607,  2  West. 
Rep.  175. 

^Roche  Y.  Ullman,  104  111.  11  ;  Columbia  College  v.  Lynch,  70  N.  T.  440  ; 
Tulk  V.  Moxhay,  2  Phili.  Ch.  774. 

*8avage  v.  Mason,  3  Gush.  504;  Maine  v.  Cumston,  98  Mass.  317;  Standish  v. 
Lawrence,  111  Mass.  Ill;  Dorsey  v.  St.  Louis,  A.  &  T.  H.  R.  Go.  58  111.  68; 
Sterling  Hydraulic  Co.  v.  Williams,  66  111.  397;  Rindge  v.  Baker,  57  N.  Y. 
209. 

«Pew  V.  Buchanan,  72  Iowa,  637. 

^ShoA-p  V.  Cheatham,  88  Mo.  498,  5  West.  Rep.  373. 


Chap.  XL]  COVENANTS    RESPECTING    PARTY-WALLS.  225 

of  them  by  necessary  analogy  and  irresistible  inference.  Thus,  in 
the  early  case  of  Campbell  v.  Mesier^  4  Johns.  Ch.  334,  two  par- 
ties living  in  the  City  of  New  York,  on  adjacent  lots,  had  on 
the  common  line  of  their  buildings  a  ruinous  party-wall  unfit  to 
stand,  and  one  of  the  persons  thus  situated,  being  desirous  of  re- 
building, proposed  to  the  other  coterminous  proprietor  to  unite 
with  him  in  rebuilding  the  party-wall,  but  this  request  was  refused. 
AVhereupon  Campbell,  the  proposer,  proceeded  to  tear  down  his 
own  house,  as  well  as  the  wall,  and  rebuild  both.  Thereafter  Mesier, 
who  had  refused  to  assist  in  rebuilding  the  party-wall,  devised  his 
l^roperty  to  his  son,  who  thereafter  sold  the  lot  to  Dunstan,  and  in 
the  deed  expressly  conveyed  to  the  latter  the  use  of  the  party-wall, 
for  building,  etc.,  and  covenanted  to  indemnify  him  for  so  using 
it.  Dunstan  then  pulled  his  house  down  and  erected  a  new  one,  and 
in  so  doing  made  use  of  the  new  party-wall,  but  refused  to  pay  for 
liis  proportionate  share  of  that  wall.  Campbell  then  sued  him  in 
an  ordinary  action,  but  was  nonsuited  on  the  ground  that  he  had  no 
remedy  at  law.  On  this,  Campbell  filed  his  bill  against  both  Mes- 
ier and  Dunstan,  praying  that  the  defendants  be  decreed  to  come 
to  a  settlement  with  him  touching  the  building  of  the  party-wall, 
and  to  contribute  and  pay  one  half  of  the  value  thereof,  etc.  Up- 
on this  state  of  facts,  the  prayer  of  the  bill  was  granted,  and  a  de- 
cree entered  accordingly,  Chancellor  Kent  remarking  :  "  I  have 
not  found  any  adjudged  case  in  point,  but  it  appears  to  me  that 
this  case  falls  within  the  reason  and  equity  of  the  doctrine  of  con- 
tribution which  exists  in  the  common  law,  and  is  bottomed  and 
fixed  on  general  principles  of  justice.  In  Sir  William  Harherfs 
Case,  3  Coke,  fol.  11,  p.  30,  and  in  Bro.,  Abr.,  title  Suite  and  Contri- 
hution,  many  cases  of  contribution  are  put  and  the  doctrine  rests 
on  the  principle  that  where  the  parties  stand  in  equali  jure  the  law 
requires  equality,  which  is  equity,  and  one  of  them  shall  not  be 
obliged  to  bear  the  burden  in  ease  of  the  rest.  It  is  stated  in 
Fitzh.,  N.  B.  162  h,  that  the  writ  of  contribution  lies  where  there 
are  tenants  in  common,  or  who  jointly  hold  a  mill  pro  indiviso 
and  take  the  profits  equally,  and  the  mill  falls  into  decay,  and  one 
of  them  will  not  repair  the  mill,  the  form  of  a  writ  is  o-iven  to 
compel  the  other  to  be  contributory  to  the  reparations.  In  Sir 
William  Rarberts  Case,  supra,  it  was  resolved  that  when  land 
15 


226  IMPOSED  DUTIES,   PERSONAL.  [Part   1. 

was  charged  by  any  tie  the  charge  ought  to  be  equal,  and  one 
should  not  bear  all  the  burden ;  and  the  law  on  this  point  wa& 
grounded  in  great  equity,  .  .  .  The  doctrine  of  contribution 
is  founded,  not  on  contract,  but  on  the  principle  that  equality  of 
burden,  as  to  a  common  right,  is  equity,  and  the  solidity  and  ne- 
cessity of  this  doctrine  were  forcibly  and  learnedly  illustrated  by 
Lord  Ch.  Baron  Eyre,  in  the  case  of  Bering  v.  Earl  of  Win- 
chelsea^  1  Cox,  Cas.  318.  .  .  .  The  obligation  arises,  not 
from  obligation,  but  from  the  nature  of  the  relation,  or  quasi  ex 
contractu  ;  and  as  far  as  courts  of  law  have,  in  modern  times,  as- 
sumed jurisdiction  upon  this  subject,  it  is,  as  Lord  Eldon  said  (14r 
Yes.  Jr.  164),  upon  the  ground  of  an  implied  assumpsit.  The  de- 
cision at  law,  stated  in  the  pleadings,  may  therefore  have  arisen 
from  the  difficulty  of  deducing  a  valid  contract  from  the  case;  that 
difficulty  does  not  exist  in  this  court,  because  we  do  not  look  to  a 
contract,  but  to  the  equity  of  the  case  as  felt  and  recognized,  ac- 
cording to  Lord  Coke,  in  every  age,  by  the  judges  and  sages  of 
the  law."  And  the  cause  was  referred  to  a  master  to  ascertain  the 
cost  of  the  wall.  Afterwards,  the  cause  coming  on  again  before 
the  chancellor,  he  ruled  that  the  expense  of  rebuilding  the  wall 
was  an  equitable  charge  on  the  wall,  and  the  owner,  for  the  time 
being,  exercising  his  right  in  the  new  wall,  was  equitably  bound 
to  contribute  ratably  to  the  expense  of  the  necessary  reparation. 
And  Dunstan,  having  purchased  with  actual  notice  of  the  charge 
or  claim,  was  ordered  to  pay  the  moiety  of  the  expense  of  re- 
building the  wall. 

In  Rindge  v.  BaTcer,  57  N.  Y.  209,  two  adjoining  proprietors 
entered  into  a  parol  agreement  to  jointly  build  a  party-wall,  one 
half  on  the  premises  of  each,  and  accordingly  built  a  portion  of 
the  wall,  but  one  of  them  refused  to  proceed  ;  the  other,  having 
planned  his  building  in  reliance  on  the  contract  being  performed, 
was  held  not  confined  to  his  remedy  for^  specific  performance,  but 
might  go  on  and  complete  the  wall,  and  in  an  equitable  action  re- 
cover of  the  other  proprietor  one  half  of  the  expense.  In  Huclc 
V.  Flentye,  80  111.  258,  two  adjoining  proprietors,  without  any  ex- 
press agreement  as  to  who  should  pay  for  the  party-wall,  agreed  ta 
rebuild  together,  and  did  so,  and  one  of  them,  having  built  the  en- 
tire party-wall,  was  held  entitled  to  recover  in  an  action  of  assump- 


Cliap.  XI.]  COVENANTS    RESPECTING    PARTY-WALLS.  227 

sit  one  half  of  the  expense  from  the  other  proprietor,  and  this 
ruling  was  placed  on  the  ground  of  contribution  and  of  an  implied 
promise. 

In  Sandej's  v.  Martin^  2  Lea,  213,  where  one  owner  of  a  party- 
wall  made  additions  to  it  for  his  own  convenience,  and  the  co- 
owner  afterwards  used  such  additions  when  enlarging  her  own 
building,  it  was  held  on  bill  brought  by  the  first  party  that  he 
could  compel  contribution  from  the  other  for  one  half  the  expense 
of  such  additions.  The  case  of  Piatt  v.  Eggleston,  20  Ohio  St. 
414,  was  one  where  W,  the  owner  of  a  lot,  sold  and  conveyed  one 
half  of  it  to  P,  agreeing  at  the  same  time  in  a  separate  writing, 
not  under  seal,  that  P  might  erect  one  half  of  the  wall  of  his 
building  on  the  part  of  the  lot  retained,  and  that  "W,  when  he 
should  sell  the  residue  of  the  lot,  would  require  the  purchaser  or 
his  assigns,  when  they  should  use  the  party-wall,  to  pay  one  half  of 
the  expense  to  P  or  his  assigns.  P  built  on  his  lot,  and  after  that 
conveyed  it,  "with  the  appurtenances,"  etc.,  with  full  covenants  of 
warranty  to  E.  W  afterwards  conveyed  by  deed  of  release  to  C 
the  remainder  of  the  lot  without  requiring  him  or  his  assigns  to 
pay  the  moiety  of  the  expense  of  the  party-wall,  when  he  should 
build,  nor  is  it  stated  that  C  was  aware  of  the  agreement  previous- 
ly made.  C  thereupon  built  on  his  portion  of  the  lot  thus  pur- 
chased, and  in  building  used  the  party-wall,  and  it  was  held  in  an 
equitable  proceeding  by  E  that  the  effect  of  the  agreement  was 
to  give  to  P  and  his  assigns  a  right  iu  equity  to  an  easement 
for  the  support  of  one  half  of  the  wall  on  the  premises  re- 
tained by  W;  that  it  was  immaterial  that  the  agreement  was  not 
inserted  in  the  deed  to  P,  and  that  it  was  not  under  seal,  and 
that  it  was  not  a  covenant  running  with  the  land  ;  that  as  the  fii'st 
lot  sold  was  liable  to  be  subjected  under  the  agreement  to  the  bur- 
den of  the  use  of  the  wall  for  the  benefit  of  the  adjoining  premi- 
ses, E,  the  then  owner,  was  equitably  entitled  to  compensation 
for  the  one  half  of  such  wall,  and  that  this  right  of  compensation 
passed  as  an  appurtenance  by  the  deed  from  W  to  P,  and  from 
the  latter  to  plaintiff  in  the  same  way. 

In  Roche  v.  Ullman,  104  111.  11,  it  was  ruled  in  a  proceeding  in 
equity  that  where  owners  of  adjoining  premises  make  an  agreement 
under  seal  for  themselves,  heirs  and  assigns,  whereby  one  is  to 


228  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

build  the  party-wall,  and  tlie  other,  when  he  uses  it  in  the  con- 
struction of  his  building,  is  to  pay  half  of  the  cost  of  such  wall, 
the  effect  of  such  agreement  is  to  create  cross-easements  as  to  each 
owner,  which  bind  all  persons  succeeding  to  the  estates  to  which 
the  easements  are  appurtenant;  and  a  purchaser  of  the  estate  of 
the  owner  so  contracting  would  take  it  burdened  with  the  liability 
to  pay  one  half  the  cost  of  the  wall  whenever  he  availed  himself  of 
its  benefits.     The  authorities  already  cited,  and  other  cases  which 
may  be  found,  support  this  view,  that  such  agreements  are  equita- 
ble easements  or  servitudes,  constituting  charges  on  the  land,  and 
capable  of  enforcement  in  equity  against  the  land  itself  where  the 
ao-reement  or  covenant  is  of  an  affirmative  character,  or  susceptible 
of  being  enforced  in  other  appropriate  modes  where  the  agree- 
ments are  negative  or  restrictive  in  their  nature.     Thus  where  ad- 
ioinino-  owners  of  lands  by  mutual  covenants  imposed  certain  con- 
ditions on  their  respective  lands  as  to  the  character  of  the  build- 
ings which  should  be  erected  on  those  lands,  it  was  held  that  equity 
would  enjoin  the  parties,  or  those  claiming  under  them  with  no- 
tice from  any  violation  of  such  covenants;  that  such  covenants 
constituted  reciprocal  easements  impressed   upon  the  lands ;  and 
that  whether  there  was  any  privity  of  estate  between  the  mutual 
covenantors  and  covenantees,  whether  the  covenant  was  one  run- 
ning with  the  land  or  a  collateral  covenant,  or  a  covenant  in  gross, 
or  whether  an  action  at  law  could  be  sustained  upon  it,  was  not 
material  as  affecting  the  jurisdiction  of  a  court  of  equity  in  afford- 
ino-  relief  upon  a  disturbance  of  the  easements  created  by  the  orig- 
inal contracting  parties.     The  language  of  courts  and  judges  has 
been  very  uniform  and  very  decided  on  this  subject,  and  all  agree 
that  whoever  purchases  lands  upon  which  the  owner  has  imposed 
an  easement  of  any  kind,  or  created  a  charge  which  could  be  en- 
forced in  equity  against  him,  takes  the  title  subject  to  all  easements, 
equities  and  charges,  however  created,  of  which  he  has  notice.' 
If  an  equity  is  attached  to  property  by  the  owner,  no  one  pur- 
chasing with  notice  of  that  equity  can  stand  in  a  different  situation 
from  the  party  from  whom  he  purchased.'     The  distinction   be- 
tween the  binding  obligation  at  law  of  covenants  not  running  with 

^Trustees  v.  Lynch,  70 N.  Y.  440,  and  cases  cited. 
"^Tulk  V.  Moxhay,  2  Phill.  Ch.  774. 


Ciiap.  XI.]  COVENANTS   RESPECTING    PARTY-WALLS.  229 

the  lands  and  the  equitable  rights  which  equity  enforces  in  such 
cases  is  recognized  by  the  author  of  the  American  note  to  Spen- 
cer's Case^  1  Smith,  Lead.  Cas.  (6th  Am.  ed.)  1G7.  He  says,  when 
speaking  of  such  covenant :  "  But  although  the  covenant,  wlien 
regarded  as  a  contract,  is  binding  only  between  the  original  par- 
ties, yet,  in  order  to  give  effect  to  their  intention,  it  may  be  con- 
strued by  equity  as  creating  an  incorporeal  hereditament  (in  the 
form  of  an  easement)  out  of  the  unconveyed  estate,  and  rendering  it 
appurtenant  to  the  estate  conve^'cd;  and  when  this  is  the  ease,  sub- 
sequent assignees  will  have  the  rights  and  be  subject  to  the  obliga- 
tions which  the  title  or  liability  to  such  easement  creates.'"  And  it 
is  quite  immaterial,  so  far  as  equitable  interposition  and  relief  are 
concerned,  whether  the  covenant  or  agreement  be  affirmative  or  re- 
strictive in  its  character.'  Frequent  instances  are  given  by  the 
learned  author  just  cited,  of  the  enforcement  of  both  kinds  of  cove- 
nants, and  he  says:  "I  have,  as  it  will  be  seen,  continued  to  state  the 
doctrine  in  its  most  general  form  as  applying  to  affirmative  as  well 
as  to  restrictive  covenants,  and  as  rendering  the  owner  liable  to  the 
affirmative  duty  of  specifically  performing  the  covenant,  as  well  as 
to  the  negative  remedy  of  restraint  from  violating  it,  notwith- 
standing the  very  recent  decisions  by  the  English  Court  of  Appeal, 
holding  that  the  doctrine  applies  only  to  restrictive  covenants,  and 
does  not  extend  to  those  which  stipulate  for  affirmative  acts.  In 
my  opinion,  the  doctrine  has  been  fully  established  in  its  most 
general  form,  without  such  limitation,  by  the  overwhelming  M'eight 
of  authority,  English  and  American.'"  And  there  would  seem 
to  be  but  little  of  either  justice  or  sound  reason  in  the  doctrine 
which  enforces  the  equities  arising  from  the  agreement  of  parties 
to  refrain  from  doing  certain  acts  towards  a  certain  subject  matter 
and  yet  refuses  to  enforce  a  similar  agreement  by  compelling  the 
performance  of  acts  embraced  within  its  terms. 

It  is  immaterial  that  the  agreement  regarding  a  party-wall  does 
not  contain  the  word  "  assigns."  This  point  has  been  so  ruled  in  the 
case  of   Wilson  v.  Hart,  2  Hem.  &  M.  551,  L.  K.  1  Ch.  App.  463, 

'See  also,  treating  of  the  same  subject,  Parker  v.  Nightinfinle,  6  Allen,  341 ; 

Whitney  v.   Union  R.  Co.   11  Gray,  359;  Kirkpatnck\.' Peshine,  '34  N.  J. 

Eq.  206;  Burbank  v.  Pillshury,  48  N.  H.  475;  Norjieet  v.  CrominU,  70  N. 

C.  634. 
*2  Pom.  Eq.  Jur.  689,  and  cases  cited;  3  Pom.  Eq.  Jur.  §  1295,  and  notes. 
«3  Pom.  Eq.  .Jur.  §  1295. 


230  IMPOSED   DUTIES,  PERSONAL.  [Part    I. 

where  the  covenant  was  restrictive  iu  its  character,  and  bound  the 
purchaser,  not  naming  "assigns,"  that  no  building  erected  or  to  be 
erected  should  be  used  for  certain  purposes ;  and  it  was  held  that 
the  assignee  of  such  purchaser,  having  notice  of  the  covenant, 
would  be  bound  thereby  in  equity  and  required  to  perform  it,  not- 
withstanding it  was  also  ruled  that  the  covenant  was  a  mere  per- 
sonal engagement,  and  did  not  run  with  the  land.  And  aside 
from  any  precedent  to  that  efEect,  if,  in  consequence  of  the  agree- 
ment of  the  original  parties  to  an  equitable  burden,  a  servitude  or 
easement  was  created  on  the  land  conveyed,  the  purchaser,  having 
notice  thereof,  was,  of  necessity  and  on  the  most  familiar  of  all 
equitable  principles,  bound  thereby.  As  is  aptly  said  by  Bigelow, 
Ck.  J.,  in  Parker  v.  Nightingale,  6  Allen,  341:  "A  purchaser  of  land, 
with  notice  of  a  right  or  interest  in  it  existing  only  by  agreement 
with  his  vendor,  is  bound  to  do  that  which  his  grantor  had  agreed 
to  perform,  because  it  would  be  unconscientious  and  inequitable 
for  him  to  violate  or  disregard  the  valid  agreements  of  the  vendor 
in  reo-ard  to  the  estate,  of  which  he  had  notice  when  he  became  the 
purchaser."  So  if  he  took  under  a  quitclaim  deed  from  his  grant- 
or. This,  according  to  a  large  number  of  authorities,  would  con- 
stitute him  a  purchaser  with  notice.'  And  if,  in  addition  to  being 
a  purchaser  under  a  quitclaim  deed,  he  did  not  give  full  value  for 
the  property,  the  case  against  him  in  a  court  of  equity  will  be 
quite  strong.' 

Where  defendant  agrees  to  pay  plaintifE  a  certain  sum  for  the 
use  of  the  latter's  brick  wall  to  support  the  defendant's  building  to 
be  erected,  and  uses  such  wall  as  agreed,  while,  if  the  agreement  is 
within  the  Statute  of  Frauds,  no  recovery  can  be  had  as  on  an  ex 
press  contract,  yet  defendant  is  liable  for  use  and  occupation  ;  and 
the  parol  agreement  may  be  considered  in  estimating  the  damages. 
One  who  has  used  a  brick  wall  belonging  to  an  adjoining  owner 
for  the  purpose  of  supporting  his  own  building,  under  an  agree- 
ment to  pay  a  specified  sum  therefor,  cannot,  after  enjoying  the 

^Bidgeway  v.  HolUday,  59  Mo.  444;  Stoffel  v.  Schroeder,  63  Mo.  150;  Stivers  v. 
Home  Id.  473;  Mann  v.  Best,  Id.  491;  Oliver  v.  Piatt,  44  U.  S.  3  How. 
333  11  L.  ed.  622;  May  v.  LeClaire,  78  U.  S.  11  Wall.  217,  20  L.  ed.  50; 
Bragg  v.  Paulk,  42  Me.  502;  Smith  v.  Bunion,  42  Iowa,  48;  Watson  v. 
Phelps,  40  Iowa,  482;  Springer  v.  Bartle,  46  Iowa,  688;  Thorp  v.  Keokuk 
Coal  Co.  48  N.  Y.  253;  Marshall  v.  Roberts,  18  Minn.  405;  Bodgers  v.  Bur- 
chard,  34  Tex.  441. 

^Sharp  V.  CJieatham,  88  Mo.  498,  5  West.  Rep.  373. 


Chap.  XI.]        LIABILITY   FOR   INJURY   FROM   PARTY-WALL.  231 

use  of  the  wall  until  it  is  destroyed  by  tire,  evade  payment  of  the 
amount  due  for  use  and  occupation  by  the  fact  that  the  contract 
was  within  the  Statute  of  Frauds,  as  it  has  been  taken  out  of  the 
operation  of  the  Statute  by  complete  performance  on  the  part  of 
the  owner  of  the  wall.'  But  the  incidental  lateral  support  which 
may  be  given  by  a  party-wall  to  a  perfectly  independent  wall 
which  only  touches  it  at  different  and  distinct  places,  and  where 
the  independent  wall  is  sufficient  in  and  of  itself  to  stand  all  the 
■demands  which  may  be  made  upon  it  for  years  to  come,  is  not 
within  the  terms  of  a  contract  for  the  use  of  a  party-wall  for  a 
stipulated  consideration.'  But  if  he  build  against  it,  even  with- 
out inserting  timbers,  he  is  liable.' 

d.  LiaMlity  for  Accidental  or  JVegligent  Injury  in 
Constructing,  Elevating  or  Repairing  Farty- 
Wall. 

"Where  one  is  engaged  in  work  upon  his  own  land  he  is  required 
to  use  care  that  he  cause  no  unnecessary  injuries  to  his  neighbor.* 
And  the  rule  is  still  more  exacting  where  he  invades  in  the  use 
-of  an  easement  his  neighbor's  land,  and  where  his  operations  im- 
peril, and  perhaps  necessarily  destroy,  for  the  time  being,  his 
neighbor's  property,  as  in  the  work  about  a  party-wall. 

Thus,  where  a  party-wall  was  taken  down  by  one  owner  for  his 
own  purposes,  and  the  contractor,  under  his  agreement,  attempted 
to  shore  up  the  joists,  etc.,  in  the  adjoining  building,  but  did  not 
■do  this  sufficiently,  and  in  consequence  the  building  got  out  of 
plumb  and  was  generally  injured,  the  employer  was  held  liable  for 
the  contractor's  negligence.* 

Where  appellant,  one  of  the  owners  of  a  party-wall,  desiring 
to  rebuild  his  house,  employed  a  contractor,  binding  him  not 
to  cut  into  the  wall,  but  the  workmen  nevertheless  did  cut  into 
into  the  wall,  and  injured  respondent's  building,  by  destroying  the 
party-wall,  of  which  he  was  joint  owner,  it  was  ruled  that  the  ap- 
pellant could  not  establish   a  good  defense  to  the  respondent's 

>  Walker  v.  Shackelford,  49  Ark.  503. 

^Kingsland  v.  Tucker,  115  N.  Y.  574. 

^Greenwald  v.  Kappes,  31  Ind.  216. 

*Anfe,  p.  39,  note  1,  p.  199,  note  2.     See  Judd  v.  Cusliing,  22  Abb.  N.  C.  358, 

375. 
^Fowler  v.  Saks  (D.  C.  March  24,  1890)  7L.  R.  A.  649. 


232  IMPOSED   DUTIES,  f ERSOJ^JAL.  [rait  i. 

claim  for  damages  by  simply  proving  tliat  it  was  not  in  the  least 
necessary  to  cut  the  wall,  and  that  the  contractor  was  under  an 
obligation  not  to  do  it.  He  must  further  prove  that  it  could  not 
reasonably  have  been  expected  that  any  workman  of  ordinary  skill 
in  such  operations,  who  was  neither  insane  nor  dishonest,  would 
have  dreamed  of  cutting  the  wall.  As  it  did  not  appear  that  the 
cutting  of  the  wall  was  an  act  of  that  improbable  description,  or 
that  the  act  of  the  contractor's  workmen  was  dictated  by  any  other 
motive  than  a  desire  to  perform  their  work  efficiently,  or  that  they 
were  deficient  in  ordinary  skill,  they  ought  to  have  been  specially 
directed  not  to  interfere  with  the  wall,  and  care  should  have  been 
taken  that  they  obeyed  the  direction.  The  peril  to  the  plaintiff's 
premises  continued  as  long  as  there  remained  anything  to  be  done 
which  could  interfere  with  the  stability  of  the  wall.  Till  such 
peril  was  ended  it  was  the  duty  of  the  appellant  to  see  that  there 
was  no  want  of  supervision  and  due  precaution  to  j)revent  injurious 
results.  These  precautions  ought  no  doubt  to  have  been  taken  by 
the  contractor,  but  in  accordance  with  tlie  principle  laid  down  in 
Bower  v.  Peate^  L.  E.  1  Q.  B.  Div.  321,  and  Dalton  v.  Angus, 
L.  E..  6  App.  Cas.  829,  it  was  no  less  the  duty  of  the  appellant,  as 
between  himself  and  the  respondent,  to  see  that  they  were  strictly 
observed.' 

In  a  suit  for  damages  for  negligence  in  the  erection  of  a  wall 
abutting  against  a  party-wall,  \vhicli  by  reason  of  insufficient 
support  fell  upon  and  injured  plaintiff's  building,  where  the  de- 
fense was  that  the  contractors  and  not  the  defendants  were  liable, 
it  was  ruled  that  it  was  proper  to  instruct  the  jury  that  if  the  neg- 
ligence which  produced  the  injury  was  not  in  the  workmanship  or 
the  materials  used  by  the  contractors,  but  in  the  plans  and  specifi- 
cations, then  the  owners  of  the  building,  contracting  for  the  im- 
provement, were  liable ;  and  that,  as  in  that  case  the  contract  pro- 
vided that  the  work  should  be  done  in  a  good  and  workmanlike 
manner,  or  in  the  very  best  maimer,  these  words  must  relate  to  the 
things  specified  to  be  done,  the  contract  being  general  in  its  terms, 
and  referring  to  the  specifications.  And  it  being  provided  in  the 
contract  that  in  an  old  building  to  be  remodeled  "  the  partitions, 
walls,  archways,  stairs,  etc.,  that  conflict  with  the  plans,  are  to  be 

^ Tarry  v.  Ashton,  L,  R.  1  Q.  B.  Div.  314;  Hughes  v.  Percival,  L.  R  8  App. 
Cas.  443. 


Chap.  XL]        LIABILITY    FOR    INJURY    FROM    PARTY-WALL.  233 

taken  down  or  filled  up  as  may  be  required,"  and  "the  old  work  to 
be  joined  on  the  new  in  the  very  best  manner,  and  anchored 
where  directed,"  it  was  held  that  the  directions  were  to  be  t^iven 
by  the  defendants.'  If  the  manner  in  which  the  work  was  to  be 
done  under  the  terms  of  the  contract  did  make  it  danfjerous  to 
plaintiff's  property,  and  injury  did  result  therefrom;  or  if  defend- 
ant reserved  to  itself,  to  any  extent,  a  control  over  the  contractors 
as  to  the  manner  in  which  certain  work  should  be  done  ;  or  if  the 
manner  in  which  it  was  to  be  done  was  left  open  for  the  directions 
of  defendant,  and  defendant  failed  to  give  proper  directions  on  that 
subject,  by  reason  of  which  the  damage  ensued, — then  defendants 
were  liable." 

Indeed,  the  rule  ie  stated  that  where  one  owner  does  any  work 
about  a  party-wall,  except  such  as  is  necessary  to  make  repairs, 
or  keep  it  in  safe  condition,  when  due  care  only  is  required,* 
and  he  does  the  work  without  the  co-operation  of  the  adjoining 
proprietor,  he  does  it  at  his  peril,  and  must  answer  for  any  injuri- 
ous consequences  without  regard  to  the  question  of  negligence.* 
There  must,  however,  be  a  right  of  support  shown  beyond  that 
of  mere  juxtaposition/  Where,  however,  the  owners  of  the 
party-wall  each  employ  an  agent  in  the  work  of  removal,  neither 
can  recover  of  the  other.  "  Since  the  wall  was  taken  down  by 
both,  neither  can  impute  negligence  to  the  other."*  And  they 
will  be  jointly  liable  for  permitting  it  to  fall,  from  neglect  to  re- 
pair, and  cause  injury  to  others.' 

^Lancaster  v.  Connecticut  Mut.  L.  Ins.  Co.  92  Mo.  460,  10  West.  Rep.  409. 

See  Crawshaw  v.   Sumner,  56  Mo.  528  ;  3  Waslib.   Real  Prop.  330-332  ; 

Earl  V.  Beadleston,  10  Jones  &  S.  294. 
^Horner  v.  Nicholson,  56  Mo.  220;  Lottman  v.  Barnett,  62  Mo.  162;  Garret- 

zen  V.  Duenckel,  50  Mo.  104:-, Rowe  v.  Newmarch,  12  Allen,  49. 
^Stedman  v.  Smith,   8   El.  &  Bl.   1;  Evans  v.  Jayne,  23  Pa.  34  ;  Brooks  v. 

Curtis,  50  N.  Y.  639;  Partridge  v.  Gilbert,  15  N.  Y.  601. 
*Hammond  v.  Schiff,  101  N.  C.  161;   Sc?ule  v.  Brokhahus,  80  N.  Y.   614; 

Gorliam  v.  Gross,  125  Mass.  232;  Eno  v.  Del  Vecchio,  6  Duer,  17;  Brooks  v. 

Curtis,  50  N.  Y.  639:  Milne's  Appeal,  81  Pa.  54;  Webster^.  Stevens,  5  Duer, 

553.     See  Potter  v.  White,  6  Bosw.  644;  Phillips  v.  Bordman,  4  Allen,  147; 

Dowling  v.  Hennings,  20  Md.   179  ;  Uieatt  v.  Morris,  10  Ohio  St.  523  ; 

Bradbee  v.  Christ's  Hospital,  4  Man.  &  G.  714;  Stedman  v.  Smith,  8  El.  & 

Bl.  1.     But  see  Hart  v.  Baldwin,  1  N.  Y.  Leg.  Obs.  139;  Shrieve  v.  Stokes, 

8  B.  Mon.  453. 
^Napier  v.  Bulwinkle,  5  Rich.  L.  311,  324  ;  Partridge  v.  Gilbert,  15'  N.  Y. 

601,  Q12;  Peyton  v.  St.  Ttumias Hospital,  9  Barn.  &"C.  725. 
^Hill  V.  Warren,  2  Stark.  378.     See  Chauntler  v.  Robinson,  4  Exch.  163. 
''Elander  v.  McGrath,  35  Pa.  128. 


CHAPTER  XIl. 

USE  AND  NEGLIGENCE  AS  AFFECTING  EASEMENTS. 

Sec.  20.    Use  to  Create  Prescription. 

Sec.  21.  Extent  of  Presumed  Right  Limited  hy  User  on  Wliich  Pre- 
sumption Rests. 
Sec.  23.  Negligence  as  Affecting  Easements. 

a.  Negligent   Failure  to  Discover   Contimious  or  Apparent 

Easement. 

b.  Negligence  in  the  Use,  or  in  Interrupting  the  Exercise,  of 

an  Easement. 

1.  In  a  Way. 

2.  In  Light. 

3.  In  Water  Naturally  or  Artificially  Flowing. — Har- 

vesting Ice. 

c.  Identity  of  Use. 

d.  Appropriatiyig  for  an  Easement. 

Section  ^0.—  Us6  to  Create  Prescription. 

The  doctrine  of  presuming  a  deed  or  grant  is  not  confined  to 
cases  involving  title  to  tracts  of  land,  but  is  applied  in  aid  of  ease- 
ments and  incorporeal  hereditaments,  which  have  been  for  a  suffi- 
ciently long  term  claimed  and  used  under  circumstances  indicating 
the  probability  of  a  grant.'  The  doctrine  as  to  presumptions  of  a 
grant  is  the  same,  whether  the  grant  relates  to  a  corporeal  or  incorpo- 
real hereditament.''  Thus  the  easement  of  a  right  of  way  lies  only  in 
grant,  or  by  prescription,  which  supposes  a  grant.^  Twenty  years' 
uninterrupted  and  unqualified  enjoyment  of  a  way  across  the 
lands  of  another  has  been  said  to  be  decisive  evidence  of  a  grant 
•of  the  right  of  way.*     The  use  must  be  confined  to  a  definite 

^Derrickson  v.  Springer,  5  Harr.  21. 

^Ricard  v.  Williams,  20  U.  S.  7  Wheat.  60,  5  L.  ed.  398. 

^Burlington  &  C.  R.  Co.  v.  Schweikart,  10  Colo.  178. 

*  Lansing  y.Wiswall,  5  Denio,  213;  Blake  v.  Exerett,  1  Allen,  248;  Hill  v. 
Crosby,  2  Pick.  4(j6;  Millers.  Oarlock,  8  Barb.  153;  Pillsbury  y.  Brown, 
82  Me.  450;  Gay  v.  Boston  &  A.  R.  Co.  141  Mass.  407,  2  New  Eng.  Rep. 
240;  McKemie  v.  Elliott  (111.  June  12,  1890)  24  N.  E.  Rep.  965;  Nicholh 
V.  \Ventwo7-th,  100  N.  Y.  455,  1  Cent.  Rep.  737;  Wiley  v.  Norfolk  S.  R.  Co. 
96  N.  C.  408;  Zigefoose  v.  Zigefoose,  69  Iowa,  391 ;  Dexter  v.  Tree.  117  111. 
.532.  5  West.  Rep.  897. 


•Chap.  XII,]  USE   TO    CKEATE    PKESOBIPTION.  'Z35 

line.'  The  fact  that  when  the  ground  was  soft  the  adverse  user 
turned  out  of  the  way  at  a  certain  point  and  made  several  distinct 
tracks  there  will  not  affect  the  right.'  A  servitude  may  be  acquired 
by  statute  in  a  shorter  time, — thus,  in  Louisiana  in  ten  years, — and 
may  be  proved  by  parol.*  The  habitual  use  of  a  foot-path  across 
one's  premises  for  years,  without  objection,  warrants  the  finding 
of  a  license  from  him  therefor  ;  *  and  whether  the  land  be  cleared, 
inclosed,  etc.,  makes  no  difference,  *  although  an  adverse  right  of 
way  through  woodland  or  uninclosed  land  cannot  be  acquired  by 
merely  passing  over  such  lands,  without  any  working  or  other  act  to 
designate  the  way.'  A  private  easement  for  some  purposes  may  be 
acquired  in  a  public  highway.*  But  a  private  right  of  way  can- 
not be  acquired  in  a  street  while  it  is  a  public  highway,  by  using 
the  street  for  the  purpose  of  travel."  When  the  owner  of  an  es- 
tate has  been  in  the  habit  of  using,  for  the  benefit  of  the  estate,  an 
easement,  created  by  himself  over  part  of  the  estate,  and  sells  the 
servient  part,  there  is  no  presumption  of  a  reservation  of  the  ease- 
ment, except  in  case  of  absolute  necessity."  An  easement  where- 
by water  collecting  upon  land  must  be  allowed  to  find  an  outlet, 
even  though  it  overflows  adjacent  land,  may  be  acquired  by  pre- 
scription." 

Exclusive  and  uninterrupted  user  of  a  way,  by  the  inhabitants 
of  a  town,  for  more  than  twenty  years,  will  warrant  the  pre- 
sumption of  a  grant ;  but  it  will  be  technically  a  private  way, 
and  any  other  person  than  an  inhabitant  passing  on  it  will  be  a 
trespasser ;  if  it  is  obstructed,  no  indictment  will  lie  for  the  ob- 
struction ;  nor  will  the  town  be  liable  to  punishment  for  neglecting 

^Johnson  V.  Lewis,  47  Ark.  66;  South  Branch  B.  Co.  v.  Parker,  41  N.  J.  Eq. 

489,  4  Cent.  Rep.  63. 
^Cheney  v.  O'Brien,  69  Cal.  199. 
^Kennedy  v.  McCollam,  34  La.  Ann.  568. 
^Driscoll  V.  Newark  &  R.  L.  &  G.  Co.  37  N.  T.  637. 
^  Worrall  v.  Rhoads,  2  Whart.  427. 
^Watt  V.  Trapp,  2  Rich.  L.  136;  Gibson  v,  Durham,  3  Rich.  L.  85;  Caroon 

V,  Doocey,  3  Jones,  L.  23. 
''Ross  V.  Thompson,  78  Ind.  90. 

'^Webster  v.  Lowell,  142  Mass.  334,  2  New  Eng.  Rep.  674. 
^Shoemaker  v.  Shoemaker,  11  Abb.  N.  C.  80;  Kelly  v.  Dunning,  43  N.  J.  Eq. 

62,  8  Cent.  Rep.  600 ;  Fetters  v.  Uumphreys,  18  N.  J.  Eq.  260. 
*oConklin  v.  Boyd,  46  Mich.  56  ;  Murchie  v.  Gates,  78  Me.  300,  2  New  Eng. 

Rep.  435. 


2'66  IMi'OSlCD   DUTIES,  PERSONAL.  [Fart  J.. 

to  repair  it.'  Occupation  of  a  stream  not  navigable  for  twenty 
years  is  presumptive  evidence  of  an  original  grant  of  a  riglit  to 
use  the  water.*  A  grant  upon  condition  may  be  presumed  from 
use  and  enjoyment  for  the  term  of  twenty  years  adversely  and 
uninterruptedly,  and  especially  upon  the  performance  of  a  duty 
connected  with  the  easement."  The  time  of  enjoyment  requisite 
for  the  prescription  is  deemed  to  be  uninterrupted  when  it  is  con- 
tinued from  ancestor  to  heir  and  from  seller  to  buyer."  The  mere 
use  of  a  way  over  uninclosed  land  will  never  ripen  into  a  pre- 
sumption of  adverse  right ;  the  prescription  must  be  founded  upon 
implied  assertions  of  the  right  on  the  one  part,  or  admissions  on  the 
other ; "  for  if  the  enjoyment  can  be  referred  to  the  leave  or  favor  of 
the  party  over  whose  lands  the  right  of  way  is  claimed,  or  can  be 
placed  on  any  other  footing  than  a  claim  or  assertion  of  right,  this 
will  repel  the  presumption  of  a  deed  or  grant." 

The  enjoyment  of  an  incorporeal  hereditament  furnishes  a  pre- 
sumption only  of  a  legal  title,  confirmed  or  repelled  by  the  circum- 
stances incident  to  its  use ;  as  the  enjoyment  is  used  merely  by 
way  of  evidence  to  raise  the  presumption  of  a  grant,  the  manner 
of  the  enjoyment,  that  it  was  by  mere  favor,  and  not  as  a  right, 
may  be  used  as  evidence  to  rebut  that  presumption.'  Hence,  the- 
presumption  has  been  held  rebutted  by  proof  that  the  land  OAvner 
placed  gates  across  the  way  claimed  ;  *  or  that  he  ploughed  up  the 
way,  declaring  that  the  person  claiming  the  use  had  no  right,  al- 
though such  person  was  not  present;'  or  that  he  has  habitually 
broken  and  interrupted  the  use  whenever  he  thought  proper.'" 

To  be  adverse,  within  the  rule  that  the  enjoyment  of  an  easement 

Worn.  V.  Low,  3  Pick.  408. 

^Bullen  V.  Runnels,  2  N.  H.  255. 

^Watkins  v.  Peek,  13  N.  H.  360. 

43  Kent,  Com.  444;  Debolt  v.  Carter,  31  Ind.  355;  Cady  v.  Conger,  19  K  Y. 
256;  Irwia  v.  Bixion,  50  U.  S.  9  How.  10,  13  L.  ed.  25;  Onstott  v.  Murray, 
22  Iowa,  457;  Simmons  v.  Cornell,  1  R.  I.  519;  Atty-Gen.  v.  Morris  d:  E. 
B.  Co.  19  N.  J.  Eq.  386,  575;  Ang.  Highways,  §  132. 

^Sim^  V.  Davis,  Ciieves,  L.  1. 

'^Pue  V.  Pae,  4  Md.  Ch.  386;  Evans  v.  Dana,  7  R.  I.  306;  Hulburt  v.  Leon- 
ard, Brayt.  201 ;  Ingraham  v.  Hough,  1  Jones,  L.  39. 

"^Hall  V.  McLeod,  2  Met.  (Ky.)  98. 

^Com.  V.  Newbury,  2  Pick.  51;  Ingraham  v.  Hough,  1  Jones,  L.  39. 

^Barker  v.  Clark,  4  N.  H.  380. 

^oRirschmer  v.  Western  &  A.  R.  Co.  67  Ga.  760. 


■Chap.  XII.]  CSE   TO   CREATE    PRESCRIPTION.  237 

must  be  adverse  to  raise  the  presumption  of  a  grant,  such  onjo}'- 
ment  must  constitute  a  legal  injury  for  which  an  action  would  lie; 
the  receiving  of  light  coming  over  defendant's  house  into  plain- 
tiff's windows  does  not  amount  to  such  legal  injury  and  cannot 
raise  the  presumption  of  a  grant.'  The  undisturbed  enjoyment 
of  any  known  legal  right,  such  as  the  flowing  of  lands  for  the  sup- 
port of  mills,  etc.,  for  any  term  of  time,  furnishes  no  presumptive 
evidence  of  a  grant.^  For  an  underground  drain,  adverse  user 
will  only  run  from  time  of  notice  to  the  person  against  whom  it  is 
to  be  claimed.*  General  usage,  like  that  of  depositing  lumber  on 
the  banks  of  a  river,  not  accompanied  by  a  claim  of  title,  or  an  in- 
tention of  occupying  the  land  to  the  exclusion  of  the  owner's 
rights,  cannot  furnish  any  legal  presumption  of  a  grant.*  But, 
in  general,  that  the  enjoyment  was  adverse  may  be  presumed,  if 
the  user  was  notorious  and  in  the  ordinary  manner,  and  not  under 
circumstances  showing  it  to  have  been  by  leave  and  favor,  or  by 
the  courtesy  of  the  owner. ^ 

A  grant  of  a  private  way  cannot  be  presumed  from  a  user  by 
claimant  in  common  with  other  persons, '  nor  where  it  is  opeu 
to  and  used  by  the  public.^  If  the  presumption  of  dedication  for 
a  way  is  to  be  founded  on  user  alone,  user  for  twenty  years,  the  stat- 
utory term,  must  be  shown  ;  but  a  shorter  period  will  suffice  where 
acts  of  the  land  owner  indicating  an  intent  to  dedicate  are  shown,* 

To  create  the  presumption  of  a  grant  of  a  right  of  way,  the  cir- 
cumstances attending  its  use  must  be  such  as  to  make  it  appear 
that  it  was  established  for  the  benelit  of  the  claimant,  or  that  it 
was  accompanied  by  a  claim  of  right  or  by  such  acts  as  manifested 
an  intention  to  enjoy  it  without  regard  to  the  wishes  of  the  owners 
of  the  land.' 

^Napier  v.  Bulwinkle,  5  Rich.  L.  311. 

*Tinkham  v.  Arnold,  3  Me.  120. 

*Trecvdwell  v.  Inslee,  120  N.  Y.  458;  Munson  v.  Heid,  46  Hun,  399. 

*Bethum,  V.  Turner,  1  Me.  111. 

^EsUng  v.  Williams,  10  Pa.  126. 

^Day  V.  Allender,  22  Md.  511.    But  see  McEenzie  v.  Eniott  (111.  .June  12  1890) 

24  N.  E.  Rep.  965;  Wanger  v.  Hippie  (Pa.  March  19,  1888)  11  Cent.'  Kep. 

776. 
"f  a  Neil  V.  Blodgett,  53  Vt.  213. 
^Denning  v.  liooTne,  6  Wend.  651. 
^Dexter  v.  Tree,  117  111.  532,  5  West.  Rep.  897. 


238  IMPOSED  DUTIES,  PERSONAL.  [Part  1.. 

Section  21. — Extent  of  Presumed  Right  Limited  hy 
User  on  Which  Presumption  Rests. 

A  prescription  presupposes  a  grant  and  ought  to  be  continued 
according  to  the  intent  of  the  original  creation.  A  party 
claiming  or  asserting  an  easement  under  a  grant  cannot  claim 
any  other  or  greater  easement  by  user  or  prescription  than  that 
embraced  in  the  grant,  as  a  right  can  be  acquired  by  prescription 
only  where  a  grant  can  be  presumed.'  The  leading  case  on  the 
subject  is  Howell  v.  King,  1  Mod.  190,  decided  by  the  English 
Court  of  Common  Pleas  two  centuries  ago.  The  case  was:  A 
had  a  way  over  B's  ground  to  Black  Acre,  and  drove  his  cat- 
tle over  B's  ground  to  Black  Acre,  then  to  another  place  be- 
yond. The  question  was  whether  this  was  lawful.  It  was  urged 
for  the  defendant  that  when  his  cattle  were  at  Black  Acre,  he- 
might  drive  them  whither  he  would.  On  the  other  side,  it  waa 
said  that  if  so  the  defendant  might  purchase  100  or  1000  acres  ad- 
joining Black  Acre,  to  which  he  prescribed  to  have  a  way,  and 
plaintiff  would  lose  the  benefit  of  his  land;  that  a  prescription 
presupposes  the  grant  and  ought  to  be  continued  according  to  the 
intent  of  the  original  creation.  To  this  the  court  agreed  and  gave- 
judgment  for  the  plaintiff.  The  case  states  the  law  and  the  reason 
of  the  law  and  it  has  been  followed  uniformly  in  both  England 
and  America.* 

A  right  of  way  cannot  be  established  by  license  unless  it 
be  specific.^  A  parol  license  of  a  way  is  insufficient.^  But 
a  right  of  way  granted,  its  locality  and  duration  not  defined, 
may  become  fixed  by  use  and  acts  of  acquiescence  of  the  parties, 
and  encroachments  thereon  will  be  restrained."  The  conveyance 
of  a  right  of  way  over  a  parcel  of  land,  not  defining  its  limits,  but 
simply  designating  the  place  where  it  might  reasonably  be  enjoyed, 
does  not  operate  to  pass  a  right  to  the  unobstructed  use  of  the  en- 

^Stearns  v.  Richmond  Paper  Mfg.  Co.  (Va.  Sept.  17,  1890)  14  Va.  L.  J.  465^ 
Shrewsbury  v.  Brown,  25  Vt.  197;  Hart  v,  Chalker,  5  Conn.  811. 

^Lawton  v.  Ward,  1  Ld.  Raym.  75;  Skull  v.  Olenister,  16  C.  B.  N.  S.  105; 
Allan  V.  Gomme,  11  Ad.  &  El.  759;  Davenport  v.  Lamson,  21  Pick.  72; 
Shroder  v.  Brenneman,  23  Pa.  848;  French  v.  Marstin,  24  N.  H.  440. 

'^Leonard  v.  Hart  (N.  J.  Dec.  31,  1885)  1  Cent.  Rep.  673. 

*Burlington  &  C.  R.  Co.  v.  Schweikart,  10  Colo.  178. 

^Snyder'8  App.  (Pa.  Jan.  17,  1887)  6  Cent.  Rep.  270. 


Chap.  XII.]         PRESUMED    KIGHT    LIMITED    BY    USER.  235) 

tire  lot  described."  A  grant  of  way  over  one's  premises,  without 
limitation  or  restriction,  is  understood  to  be  a  general  way  for  all 
purposes."  A  private  way  over  a  railroad  track  may  be  acquired 
by  an  individual  by  prescription,  notwithstanding  a  public  statute 
imposing  a  penalty  upon  anyone  walking  on  the  railroad  track 
without  the  company's  consent.'  In  trespass  upon  railroad  lines, 
where  the  defense  is  right  of  way,  evidence  that  for  ten  years  the 
railroad  maintained  a  crossing  over  the  lines  for  the  accommoda, 
tion  of  defendant's  private  way,  which  he  crossed  under  claim  of 
right ;  that  subsequently,  upon  the  change  of  line,  the  company 
agreed  to  maintain  such  crossing  over  the  new  line, — is  sufficient 
to  sustain  a  finding  that  defendant  had,  at  the  point  where  said 
way  crossed  the  new  line,  a  right  of  way  which  had  been  pre- 
viously granted  or  reserved.*  It  is  not  necessary  that  the  claim 
of  right  shall  be  expressly  made  or  that  the  acquiescence  be  de- 
clared. If  the  adverse  user  is  so  open  and  notorious  that  the  owner 
of  the  land  ought  to  have  known  it,  his  acquiescence  will  be  pre- 
sumed. But  the  user  must  be  adverse  and  acquiesced  in.'  The 
right  acquired  by  prescription  is  only  commensurate  to  the  right 
enjoyed  ;  the  extent  of  the  enjoyment  measures  the  extent  of  the 
right."  Evidence  that  for  forty-seven  years  defendant  had  exer- 
cised the  right  of  crossing  the  railroad  company's  line  at  a  certain 
spot  without  objection,  but  for  thirty-seven  years  had  crossed  only 
on  foot,  justifies  the  finding  that  the  right  of  way,  so  far  as  cross- 
ing on  foot  was  concerned,  had  been  acquired  by  prescription. 
But  a  right  of  way  across  a  railroad  acquired  by  prescription  must 
be  exercised  subject  to  the  superior  right  of  the  company  to  run 
its  trains  as  it  may  determine  to  be  proper  for  the  general  business 
of  its  road.'' 

A  railroad  company  should  have  such  sole  and  exclusive 
control  of  the  lands  within  the  lines  of  its  road  as  to  enable 
it  so  to  keep  it  as  to  exclude  all  possibility  of  any  accident  occur- 

^Long  V.  Oill,  80  Ala.  408. 

^Rowell  V,  Doggett,  143  Mass.  483,  3  New  Eng.  Rep   756. 

^Turner  v.  FitcMurg  R.  Co.  145  Mass.  433,  5  New  Eng.  Rep.  423. 

*FitcMurg  R.  Co.  v.  Frost,  147  Mass.  118,  6  New  Eng.  Rep.  374. 

^Deerfield  v.  Connecticut  River  R.  Co.  144  Mass.  325,  4  New  Eng.  Rep.  189. 

^Boynton  v.  Longley,  19  Nev.  69. 

"* Turner  v.  Michburg  R.  Co.  145  Mass.  433,  5  New  Eng.  Rep.  423. 


2i0  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

ring  from  any  outside  interference  with  such  possession.  As  a 
matter  of  law,  the  raih'oad  company  has  the  paramount  right  to 
the  land,  and  the  land  owner  must  yield  to  the  superior  claim  se- 
cured by  the  condemnation  proceedings ;  and  he  cannot,  in  any 
mode  or  for  any  purpose,  interfere  with  the  use  of  the  property 
so  taken  for  railroad  purposes."  If  the  right  to  remove  the  herb- 
age be  conceded,  adjoining  land  owners  would  be  found  at  the 
proper  season  within  the  lines  of  the  road  with  their  hired  men, 
tools  and  perhaps  teams,  for  the  purpose  of  taking  off  the  herbage, 
and  the  detriment  to  the  railroad  company  and  the  danger  to  the 
trains  and  passengers  would  be  increased  a  thousand  fold.  The 
men  employed  by  the  land  owners  would  be  likely  to  be  careless, 
both  in  respect  of  being  on  the  track  in  person  and  temporarily 
laying  their  tools  thereon,  from  which  accidents  might  reasonably 
be  expected  to  occur ;  to  avoid  which  a  constant  and  additional 
degree  of  watchfulness  would  be  required  by  the  engineers  having 
trains  in  charge,  and  under  the  best  management  by  the  railroad 
company  accidents  might  reasonably  be  expected  to  occur  from 
such  causes.  In  the  removal  of  such  causes,  railroad  companies 
and  the  traveling  public  are  greatly  interested.  Everything  which 
tends  to  increase  the  danger  of  travel  upon  railroads,  public  policy 
requires  should  be  prevented  if  possible.  The  propelling  power 
used  by  the  railroad ;  its  numerous  freight  and  passenger  trains 
driven  at  the  high  rate  of  speed  demanded  by  the  public ;  its  abso- 
lute responsibility  for  damage  to  insurable  property,  real  and  per- 
sonal, contiguous  to  its  lines,  caused  by  fire  communicated  by  its 
locomotives  or  so  communicated  to  materials  growing  and  nat- 
urally between  its  road  and  property  not  contiguous  and  extending 
thereto;"  its  common-law  and  numerous  statute  liabilities, — all  re- 
quire that  it  shall  have,  as  means  to  meet  these  responsibilities,  the 
fullest  opportunity  which  the  freest  use,  occupation  and  control  of 
the  land  within  its  lines  can  afford,  without  the  intervention  of 
any  acts  on  the  part  of  the  land  owner  which  may  tend  to  endan- 
ger its  trains  or  otherwise  embarrass  its  use  of  the  easement  for 
the  purpose  for  which  its  charter  was  granted.  To  this  end  it 
must  have  practically  the  exclusive  control  and  possession  of  the 

^Kansas  Cent.  R  Co.  v.  Allen,  22  Kan.  285. 
^Pratt  V.  Atlantic  &  St.  L.  R.  Co.  42  Me.  579. 


Chap.  XII.]    NEGLIGENT  FAILURE  TO  DISCOVER    EASEMENT.  24:1 

land  within  the  lines  of  its  location  and  the  authority  to  remove 
therefrom  all  things  growing  thereon,  the  removal  of  which  it 
may  deem  necessarily  conducive  to  the  safe  management  of  its 
road.' 

Section-  'it^.—J^egUgence  as  Affecting  Easements. 

a.  JVegligent  Failure  to   Discover  Continuous  or 
Apparent  Easement. 

The  doctrine  that  a  continuous  easement,  as  a  drain  or  other 
artificial  watercourse,  passes  by  implication,  rests  to  some  extent 
on  the  presumed  knowledge  of  the  purchaser  of  the  servient  estate 
of  the  existing  easement,  or  on  the  fact  of  his  actual  negligence  in 
not  making  the  necessary  inspection  of  the  premises,  and  thereby 
informing  himself  of  a  burden  which  could  be  known  by  th§  use 
of  due  diligence.*  Negligence  is  in  part  the  foundation  of  the  li- 
ability, as  the  fact  that  due  diligence  would  not  disclose  the  exist- 
ence of  a  way,  which,  being  a  right  enjoyed  at  intervals,  leaves  in 
the  interim  no  visible  sign  of  its  existence,  prevents  that  easement 
from  passing  under  the  same  grant  which  conveys  the  continuous 
•easement,^ 

Where  a  purchaser  has  knowledge  of  any  fact  sufficient 
to  put  him  on  inquiry  as  to  the  existence  of  some  right  or 
title  in  conflict  with  that  he  is  about  to  purchase,  he  is  presumed 
either  to  have  made  the  inquiry  and  ascertained  the  extent  of 

^Jacknon  v.  Rutland  &  B.  R.  Co.  25  Vt.  150;  Connecticut  &  P.  R.  R.  Co.  v. 

Eolton,  33  Vt.  43;  Hayden  v.  Skillings,  78  Me.  413,  3  New  Eng.  Rep.  174; 

Locks  iS;  Canals  v.  Nashua  &  L.  R.   Co.  104  Mass.  11,  and  cases  cited; 

Hazen  v.  Boston  &  M.  R.  Co.  2  Gray,  577,  580;  Brainardv.  Clapp,  10 

Cush.  10;  Kansas  Cent.  R.  Co.  v.  Allen,  22  Kan.  285,  31  Am.  Rep.  190; 

Pittsburg,  C.  &  St.  L.  B.  Co.  v.  Jones,  86  Ind.  496;  Salmon  v.  Delaware, 

L.  &  W.  R.  Co.  38  N.  J.  L.  5,  20  Am.  Rep.  356;  Kellogg  v.  Chicago  <t.  N. 

W.  R.  Co.  26  Wis.  227,  7  Am.  Rep.  71. 
*Memmert  v.  McKeen,  112  Pa.  315,  3  Cent.  Rep.  383;  Lampman  v.  Milks,  21 

N.  Y.  507;  Curtiss  v.  Ayrault,  47  N.  Y.  79;  Rogers  v.  Sinsheiiner,  50  N. 

Y.  646;  De  Luze\.  Bradbury,  25  N.  J.  Eq.  70.     8ee  Seymour  v,  Lewis,  13 

N.  J.  Eq.  439. 
^Kelly  V.  Dunning,  43  N.  J.  Eq.  63,  8  Cent.  Rep.  600;  Denton  v.  Leddell,  23 

N.  J.  Eq.  64;  Brakely  v.  Sharp,  9  N.  J.  Eq.  9,  10  N.  J.  Eq.  206;  Seymour 

V.  LewiH,  14  N.  J.  Eq.  439;  Fetters  v.  Humphreys,   18  N.  J.  Eq.  260.  on 

appeal,  19  N.  J.  Eq.  471;  De  Lvze  v.  Bradbury,  25  N.  J.  Eq.  70;  Sfuy- 

vesant  v.  Woodruff,  21  N.  J.  L.  133;  Central  R.  Co.  v.  Valentine.  29  N.  J. 

L.  561;  Pyerv.  Carter,  1  Hurl.  &  N.  916;  Ewart  v.  Cochrane,!  3  m.  N.  S. 

925;  Thayer  v.  Payae,  2  Cush.  333;  Plieysey  v.  Vicary,  16  Mees.  «&  W.  484. 

16 


242  IMPOSED  DUTIES,  PERSONAL.  [Part  1. 

such  prior  right,  or  to  have  been  guilty  of  a  degree  of  negligence 
equally  fatal  to  his  claim  to  be  considered  a  bona  fide  purchaser.' 
A  purchaser  is  presumed  to  know  what  the  property  is  which  he 
buys,  unless  deception  is  practiced  upon  him,^  and  if  the  way  be 
apparent  and  plainly  defined,  it  will  pass  by  grant  as  it  exists,  as  a 
continuous  easement  would.  Where,  at  the  time  of  a  grant  of  a 
right  of  way,  it  was  a  defined  way,  about  twenty-five  feet  in  width^ 
bounded  on  each  side  by  a  stone  wall,  with  bar-ways  at  intervals- 
opening  into  adjacent  fields,  extending  from  the  highway  to  a 
point  near  a  river — which  was  on  the  west  side,  the  boundary  of 
the  whole  tract — the  grant  of  the  use  of  the  lane  was  the  grant  of 
the  right  of  way  in  land  as  thus  located  and  defined.  To  consider 
it  as  anything  else  would  be  to  do  injustice  to  the  grantee,  who, 
having  found  the  way  such  as  that  described  in  the  deed,  was  able 
to  determine  from  its  width  and  direction  when  he  closed  the  pur- 
chase whether  it  was  sufiicient  for  his  purpose.  It  was  granted 
for  the  convenient  occupation  of  the  premises  conveyed,  and  the 
grantee  is  entitled  to  all  the  convenience  which,  as  it  then  existed^ 
it  could  afford  in  the  management  of  the  farm  on  which  it  bounded. 
The  erection,  therefore,  of  a  fence  across  the  lane  by  the  grantor, 
although  provided  with  a  gate  which  could  readily  be  opened  and 
closed,  even  if  the  gate  when  open  affords  sufficient  space  for  the 
passage  of  teams  and  cattle,  is  such  an  obstruction  to  the  conven- 
ient use  of  the  property  as  will  constitute  an  invasion  of  the 
grantee's  right,  and  which  he  will  be  authorized  to  peaceably  re- 
move;' for  one  having  a  right  of  way  appurtenant  to  his  land 
may  remove  unlawful  obstructions,  and  the  intention  on  his  part 
to  make  an  unjustifiable  use  of  the  way  at  a  future  time  will  not 
make  him  a  present  trespasser,  nor  will  his  claim  that  he  holds  the 
way  in  another  right  have  this  effect.* 

i  Williamson  v.  Brown,  15  N.  Y.  354,  362;  Reed  v.   Gannon,  50  N.  Y.  845, 

349,  350;  Pendleton  v.  Fan,  2  Paige,  202;  Hawley  v.  Cramer,  4  Cow.  717; 

Baker  v.  Bliss,  39  N.  Y.  70;  Brown  v.  Volkening,  64  N.  Y.  76;  Kellogg  v. 

Smith,  26  N.  Y.  18;  Sigourney  v.  Munn,  7  Conn.  324;  Youngs  v.  Wilson, 

27  N.  Y.  351;  Montefiore  v.  Browne,  7  H.  L.  Cas.  241. 
»Abb.  Tr.  Ev.  520,  Covenants  for  Title,  citing  Spoor  v.  Oreen,  L.  R.  9  Exch. 

99,  8  Moak,  Eng.  Rep.  540;  Rawle,  Cov.  Tit.  118,  and  note. 
^Dickinson  v.  Whiting,  141  Mass.  414,  2  New  Eng.  Rep.  356.     See  Salisbury 

V.  Andrews,  19  Pick.  250;  Tudor  Ice  Co.  v.  Cunningham,  8  Allen,  139; 

Welch  V.  Wilcox,  101  Mass.  162;  Tucker  v.  Hoioard,  122  Mass.  529;  Nash 

V.  Mw  England  Mut.  L.  Ins.  Co.  127  Mass.  91. 
*Rayes  v.  De  Viio,  141  Mass.  233.  1  New  Eng.  Rep.  749. 


Chap.  XII.]       NEGLIGENCE,  ETC.,  OF    EASEMENT  IN  A  WAY.  243 

In  Bakemaii  v.  Talbot,  31  N.  Y.  366,Jud</e  Denio  says:  "The 
doctrine  that  the  faciHties  for  passage,  where  a  private  right  of  way 
exists,  are  to  be  regidated  by  the  nature  of  the  case  and  the  cir- 
cumstances of  the  time  and  place,  is  very  well  settled  by  author- 
ity.' The  extent  of  the  privilege  created  by  the  dedication  of  a 
private  right  of  passage  depends  upon  the  circumstances,  and 
raises  a  question  for  the  determination  of  the  jury.  If,  therefore? 
in  the  present  case  I  felt  less  conlidence  in  the  conclusion  I  have 
stated  than  I  do,  I  should  hold  the  question  had  been  settled  by 
the  judge  sitting  in  the  place  of  a  jury  in  a  manner  that  we  could 
not  disturb."  '  The  owner  of  an  easement  upon  land  has  no  right, 
by  virtue  of  such  ownership,  of  entry,  nor  has  he  any  right  to  pass 
over  the  land.  He  has  a  right  to  enter  on  the  land  to  place  and 
keep  the  easement  in  repair,'  but,  aside  from  this  and  analogous 
purposes,  he  has  no  such  right.*  But  the  grant  of  a  right  of  pas- 
ture carries  the  right  of  way  to  and  from  the  pasture.  So  does, 
the  right  of  draAving  water;  and  the  privilege  of  fishing  or  hunt- 
ing gives  the  right  of  access  and  egress  to  and  from  the  estate  in 
which  it  is  enjoyed.' 

Where  one  purchases  one  of  a  number  of  platted  lots  with  refer- 
ence to  the  plat,  which  shows  the  street  unobstructed,  although  at 
the  time  of  the  purchase  it  was  closed  by  a  gate,  the  purchaser  is  not. 
chargeable  with  negligence  in  not  discovering  this  fact,  and  he  is  en- 
titled to  have  the  street  kept  unobstructed;  and  where  he  removes  the 
gate  and  the  purchaser  of  lots  adjoining  restores  it,  he  is  entitled  to 
have  an  injunction  restraining  the  other  from  maintaining  the  gate." 

b.  JVegligenee  in  the   Use  or  in  Interrupting  the- 
Exercise  of  an  Easement. 

1.  In  a  Way. 

An  owner  of  land  is  not  shorn  of  any  of  his  riglits  by  merely 
permitting  as  a  favor  another  to  pass  over  his  lands.     His  neo-li- 

'Citing  Hemphill  v.fiostora,  8Cush.l95;  Cowlings.  Bkjgimon,^  Mees.  «&"W.  245. 
''See  Huson  v.  Young,  4  Lans.  63. 

^Brown  v.  Stone,  10  Gray,  61;  Atkins  v.  Bordnian,  2  Met.  407;  Gerrard  v 
Cooke,  3  Bos.  &  P.  N.  R.  109. 

*Fiizell  V.  Leiiky,  72  Cal.  477;  Bakeman  v.  Talbot,  31  N.  Y.  371. 

^Alexander  v.  Tolleston  Club,  110  111.  65. 

^Chapin  v.  Brown,  15  R.  I.  579,  4  New  Eng.  Rep.  918.. 


244  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

gence  in  asserting  his  right  to  exchide  will  not  estop  him.  In 
order  to  estabhsh  a  prescriptive  right,  something  more  than  mere 
permissive  user  or  passive  negligence  must  be  shown.'  The  use 
of  land  for  the  purpose  of  passing  over  it  is  not  inconsistent  with 
the  right  of  ownership,  and  where  there  is  no  inconsistency  be- 
tween the  use  and  the  ownership,  there  can  be  no  prescriptive 
right.  It  is  not  necessary  to  establish  a  prescriptive  easement  that 
there  should  be  color  of  title,  but  it  is  necessary  that  the  use  should 
be  under  an  assertion  of  right,  and  not  simply  a  user  under  a  naked 
license  or  negligent  acquiescence.^ 

The  owner  of  the  soil,  having  a  license  from  a  person  having  a 
right  of  way  over  the  land,  to  build  an  arch  over  the  way,  cannot 
shelter  himself  by  such  license  from  injury  caused  by  his  negligent 
obstruction  of  the  way  in  the  progress  of  the  building,  or  for  his 
negligence  in  completing  the  same  within  a  reasonable  time.' 
Where  the  owner  of  land  in  Boston  abutting  on  a  private  passage- 
way, marked  at  each  end  "private,"  the  soil  of  one  half  of  which 
he  owns  subject  to  the  right  of  way,  constructs  a  sidewalk,  leaving 
insufficient  room  for  the  opposite  owner  to  turn  his  team,  the  latter 
is  entitled  to  a  decree  ordering  its  removal,  and  compensating  him 
in  damages  for  the  injury  which  he  has  sustained  in  consequence." 
Under  covenants  in  deeds  that  land  is  to  be  used  for  no  other  pur- 
pose than  an  alley,  and  that  such  alley  is  to  be  kept  for  the  mutual 
benefit  of  the  owners  of  the  property  on  each  side,  neither  party 
has  a  right  to  obstruct  the  alley  by  building  a  wooden  frame  en- 
tirely across  it,  and  putting  up  hooks  and  slides  of  metal  on  which 
to  hang  and  slide  fresh  meat.*  On  the  discontinuance  of  a  por- 
tion of  a  highway  to  which  a  grantee  of  lands  not  bordering  there- 
on has  a  right  of  way  of  necessity,  and.the  reversion  of  the  lands 
to  the  grantor,  the  grantee  does  not  retain  the  right  to  pass  over 
the  discontinued  portion  to  reach  a  new  highway,  his  remedy  be- 
ing a  right  to  damages  for  being  cut  off  from  his  only  means  of 
reaching  his  land.' 

'Goddard,  Easetn.  (Bennett's  ed.)  134. 
^Parish  v.  Gaspare,  109  Ind.  586,  7  West.  Rep.  369. 
^CmMng  v.  Adams,  18  Pick.  110. 
*Nute  V.  Boston  Co-op.  Bldg.  Co.  149  Mass.  465. 
^Sxoift  V.  Coker,  83  Ga.  789. 

'^Morse  v.  Benson  (Mass.  May  9,  1890)  24  N.  E.  Rep.  675;  Levet  v.  Lapeyrol- 
lerie,  39  La.  Ann.  210;  Johnson  v.  Knapp,  150  Mass.  267. 


Chap.   XII.]  NEGLIGENCE,  ETC.,  OF    EASEMENT  IN  A  WAY.  245 

The  owner  of  land  servient  to  a  right  of  way  is  not  negligent  in 
that  he  does  not  maintain  fences  along  the  wa}'  of  a  tenant  of  the 
owner  of  the  dominant  estate,  unless  he  is  bound  to  do  so  by  pre- 
scription, custom  or  express  contract.  The  owner  of  the  dominant 
estate  must  keep  his  cattle  upon  his  own  land  and  maintain  a  gate 
at  his  end  of  the  farm  road,'  In  the  absence  of  a  custom  to  the 
contrary  being  shown,  it  may  be  assumed  that  one  receiving  the 
right  to  pass  through  a  neighbor's  yard  receives  it  under  the  same 
conditions  as  to  entrance  to  the  yard  that  owners  generally  impose 
upon  themselves.  The  reservation  in  the  deed  of  a  right  to  pass 
through  a  yard  does  not  imply  a  right  to  remove  gates  from  the 
entrance,*  "A  mere  easement  for  travel  and  private  road  pur- 
poses, but  no  other  way  over  the  estate  whatever,  or  title  or  inter- 
est of  any  kind  whatever,"  does  not  give  to  the  grantee  the  right 
to  an  open  way ;  but  the  owner  may  erect  gates  at  each  end  there- 
of and  require  grantee  to  close  and  fasten  them  after  passing 
through.^  Evidence  that  a  passageway  has  been  used  in  a  certain 
mode,  from  the  time  of  making  the  deed  until  the  time  of  an  al- 
leged trespass,  without  any  objection  being  made,  is  admissible  to 
show  what  was  intended  by  the  reservation,*  What  is  a  reason- 
able use  of  a  way,  where  the  purposes  are  not  defined  in  the  grant, 
is  a  question  of  fact  to  be  determined  upon  the  evidence,^  The 
declarations  of  a  deceased  former  owner  of  land,  made  during  his 
ownership,  tending  to  prove  the  existence  of  a  right  of  way  over 
it,  are  competent  evidence  against  its  present  owner.* 

In  Iowa,  under  the  provisions  of  the  statute,  no  right  of  foot- way, 
except  W'here  claimed  in  connection  with  the  right  to  pass  with  car- 
riages, can  be  acquired  by  prescription  or  adverse  use  for  any  length 
of  time.''  The  owner  of  the  fee  in  an  alley-way  over  which  is  a  right 
of  way  may  erect  a  building  over  such  way  if  in  so  doing  he  does 

^Brill  V.  Brill,  108  N.  Y.  511,  11  Cent.  Rep.  305;  Maxwell  v.  McAtee.  9  B. 

Mod.  20;  Bean  v.  Coleman,  44  N.  H.  589;  Margrafv.  Muir,  57  N.Y.  157. 
"^Short  V.  Devine,  146  Mass.  119,  5  New  'Ens..  Rep.  593.    See  Ilmon  v.  Young, 

^  Lans.  63;  Maxwell  v.  McAiee,  9  B.  Mo  i.  20;   Garland  v.  Furber,  47  N. 

H.  301;  Baker  v.  FrickA^  Md.  337;  Amondson  v.  Severson,  37  Iowa,  603; 

Goddard,  Easem.  330;  W/ialcy  v.  Jarreit,  69  Wis.  613. 
^Whaley  v.  Jarrett,  69  Wis.  613. 

*  s  ^Eo7cell  V.  Doggett,  143  Mass.  483,  3  New  Eng.  Rep.  756. 
'  Willard  v.  Calhoun,  70  Iowa,  650. 


246  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

not  interfere  -with  the  right  of  way.'  The  various  cases  which 
have  arisen  as  to  the  right  of  the  owner  of  land  subject  to  a  right 
of  way,  to  build  or  project  structures  over  the  way,  have  all  been 
decided  upon  the  same  general  principles.  The  difference  in  the 
results  arises  from  the  application  of  these  principles  to  a  difiEerence 
in  the  grants  by  which  the  way  is  created,  and  in  other  circum- 
stances of  the  cases.  These  general  principles  are  that  a  man  who 
owns  land  subject  to  an  easement,  has  the  right  to  use  his  land  in 
any  way  which  is  coincident  with  the  easement,  but  has  no 
right  to  use  it  in  a  way  which  is  inconsistent  with  the  easement ; 
and  that  the  extent  of  the  easement  claimed  must  be  determined 
by  the  true  construction  of  the  grant  or  reservation  or  use  by  which 
it  is  created,  aided  by  any  circumstances  surrounding  the  estate  and 
the  parties  which  have  any  legitimate  tendency  to  show  the  inten- 
tions of  the  parties. 

In  the  leading  case  of  Atkins  v.  Bordman,  2  Met.  457,  it  was 
held  that  a  passageway,  about  five  feet  in  width,  running  from 
Washington  Street  to  rear  land  owned  by  the  plaintiff,  might  be 
built  over  by  the  owner  of  the  front  land.  The  court  held  that 
by  the  true  construction  of  the  grant  under  which  the  plaintiff 
claimed,  he  acquired  merely  the  right  of  "a  suitable  and  conven- 
ient foot-way  to  and  from  his  house,  of  suitable  height  and  dimen- 
sions to  carry  in  and  out  furniture,  provisions  and  necessaries  for 
family  use,  and  to  use  for  that  purpose  wheelbarrows,  hand-sleds 
and  such  small  vehicles  as  one  commonly  used  for  that  purpose,  in 
passing  to  and  from  the  street  to  a  dwelling  in  the  rear,  through 
a  foot-passage,  in  a  closely  built  and  thickly  settled  town."  It  was 
therefore  adjudged  that  the  owner  of  the  fee  might  build  over 
the  way  in  a  manner  which  did  not  render  it  unlit  for  these  pur- 
poses. This  decision  was  followed  in  Gerrlsh  v.  Shattuch,  132 
Mass.  235,  in  which  the  reservation  to  the  plaintiff  was  of  "  a  pas- 
sageway four  feet  wide  in,  through  and  over  said  premises,  from 
said  Prescott  Street  to  my  tenement  on  the  westerly  side  thereof." 
It  was  held  that  this  reserved  a  foot-way  for  passing  and  repassing, 
with  such  incidental  rights  as  are  necessary  to  its  enjoyment,  and 
that  the  owner  of  the  servient  premises  might  build  over  it  in  such 
manner  as  not  to  interfere  with  these  purposes. 

^Sutton  V.  Oroll,  43  N.  J.  Eq.  213,  4  Cent.  Rep.  251;    Oerrish  v.  Shattuck, 
133  Mass.  235.     See  AtMna  v.  Bordman,  2  Met.  457. 


Chap.  XIL]     NEGLIGENCE,  ETC.,  OF   EASEMENT  IN  A  WAT.  247 

If  one  negligently  obstruct  or  interfere  with  the  easement  of 
the  public  in  a  highway,  although  it  be  done  in  the  careless  exer- 
cise of  a  power  conferred,  he  will  be  liable  for  the  consequences 
of  such  negligence.'  If  the  obstruction  is  unauthorized  the  lia- 
bility will  exist  without  proof  of  negligence.*  One  is  liable  for 
blocking  the  sidewalk  unreasonably  with  goods  or  keeping  teams 
continuously  in  front  of  liis  premises  engaged  in  loading  or  un- 
loading goods ;  and  the  fact  that  the  same  is  necessary  in  the  course 
of  his  business  is  no  excuse ;  it  is  his  duty  to  carry  on  his  trade 
where  he  will  produce  no  serious  annoyance  to  the  people,  as  pub- 
lic convenience  and  necessity  are  paramount  to  the  ends  of  trade 
or  individual  necessity,'  The  public  are  entitled  to  an  unob- 
structed passage  upon  the  streets,  including  the  sidewalks  of  the 
city.*  The  primary  purpose  of  streets  is  use  by  the  public  for 
travel  and  transportation,  and  the  general  rule  is  that  any  obstruc- 
tion of  a  street  or  encroachment  thereon  which  interferes  with 
such  use  is  a  public  nuisance.  But  there  are  exceptions  to  the 
general  rule,  born  of  necessity  and  justified  by  public  convenience. 
Merely  standing  still  on  a  sidewalk  and  refusing  to  move  at  the 

^North  Vernon  v.  Voegler,  103  Ind.  314,  1  West.  Rep.  566;  Renwick  v.  Mor- 
ris, 3  Hill,  621,  7  Hill,  575. 

*EicharcUon  v.  Boston,  60  U.  S.  19  How.  263,  15  L.  ed.  639;  Vicksburg  <fe  M. 
R.  Co.  V.  Alexander,  62  Miss.  496;  Hussner  v.  Brooklyn  City  R.  Co.  114 
N.  Y.  483;  PilUbury  v.  Brown,  82  Me.  450;  Washington  Natural  Gas  Co. 
V.  Wilkinson  (Pa.  Nov.  9,  1885)  2  Atl.  Rep.  338;  Lippincott  v.  Lasher,  44 
N.  J.  Eq.  120,  12  Cent.  Rep.  238;  Jones  v.  Housatonic  R.  Co.  107  Mass. 
261;  Ellis  v.  Academy  of  Music,  120  Pa.  608;  Robinson  v.  New  York  &  E. 
R.  Co.  27  Barb.  512;  Keystone  Bridge  Co.  v.  Summers.  13  W.  Va.  485; 
Carlin  v.  Driscoll,  50  N.  J.  L.  28,  10  Cent.  Rep.  178;  Com.  v.  Nashua  & 
L.  R.  Co.  2  Gray,  54;  State  v.  Chicago,  M.  &  St.  P.  R.  Co.  77  Iowa,  442, 
4  L.  R.  A.  298;  Com.  v.  Old  Colony  &  F.  R.  Co.  14  Gray,  93;  Weathered 
V.  Bray,  7  Ind.  706;  Cam.  v.  Erie  &  N.  E.  R.  Co.  27  Pa.  339;  Silvers  v. 
Nerdlinger,  30  Ind.  53;  Hart  v.  Albany,  9  Wend.  571;  Baltimore  v.  Mar- 
riott, 9  Md.  160;  Rex  v.  Medley,  6  Car.  &  P.  392;  Dygert  v.  Schenck,  23 
Wend.  446;  Barnes  Y.Ward,  9  C.  B.  392. 

*Cohenv.  New  York,  113  N.  Y.  536;  Com.  v.  Passmore,  1  Serg.  &  R.  219; 
Rex  V.  Russell,  6  East,  427;  Rex  v.  Jo?ies,  3  Camp.  230;  Hart  v.  Albany,  9 
Wend.  571;  People  v.  Cunningham,  1  Denio,  524;  Knox  v.  New  York,  54 
Barb.  405,  38  How.  Pr.  67;  Doenner  v.  Tynan,  38  How.  Pr.  176;  People 
V.  Kerr,  27  N.  Y.  188;  Moore  v.  Jackson,  2  Abb.  N.  C.  211;  Greene  v. 
New  York  C.  &  U.  R.  R.  Co.  12  Abb.  N.  C.  124;  TattU  v.  Brush  Electric 
&  lU.  Co.  50  N.  Y.  Super.  Ct.  464;  Bliss  v.  Johnson,  94  N.  Y.  235;  Hal- 
lock  V.  Baranski,  Daily  Reg.  Aug.  9,  1834;  Tiffany  v.  U.  S.  Illuminating 
Co.  Daily  Reg.  April  9,  1884;  Davis  v.  New  York,  14  N.  Y.  506;  Clifford 
V.  Dam,  81  N.  Y.  56. 

•*See  Rex  v.  Russell,  6  East,  427;  Wood,  Nuisances.  §  259.  See  also  People, 
Bentley,  v.  New  York,  18  Abb.  N.  C.  123;  Elias  v.  Sutherland,  18  Abb.  N. 
C.  126. 


248  IMPOSED  DUTIES.  PEKSONAL.  [Part  I. 

command  of  a  policeman  does  not  make  one  guilty  of  a  nui- 
sance.' An  abutting  owner  engaged  in  building  may  temporarily 
encroach  upon  the  street  by  the  deposit  of  building  materials. 
A  tradesman  may  convey  goods  in  the  street  to  or  from  his 
adjoining  store.  A  coach  or  omnibus  may  stop  in  the  street 
to  take  up  or  set  down  passengers,  and  the  use  of  a  street 
for  public  travel  may  be  temporarily  interfered  with  in  a  va- 
riety of  other  ways,  as  by  a  street  railway,"  without  the  cre- 
ation of  what  in  the  law  is  deemed  to  be  a  nuisance;  but  all 
such  interruptions  and  obstructions  of  streets  must  be  justified  by 
necessity.  But  it  is  not  sufficient  that  the  obstructions  are  neces- 
sary with  reference  to  the  business  of  him  who  creates  and  main- 
tains them ;  they  must  also  be  reasonable  with  reference  to  the 
rights  of  the  public,  who  have  interests  in  the  streets  which  may  not 
be  sacrificed  or  disregarded.  Whether  an  obstruction  in  the  street 
is  necessary  and  reasonable  must  generally  be  a  question  of  fact  to 
be  determined  upon  the  evidence  relating  thereto.'  A  reference 
to  a  few  cases  will  show  what  courts  have  said  upon  this  subject. 
In  Rex  V.  Hussell,  6  East,  427,  where  the  defendant,  a  wagoner, 
was  indicted  for  occupying  one  side  of  a  public  street  before  his 
warehouse  for  loading  and  unloading  his  wagons,  the  court  said  : 
"  It  should  be  fully  understood  that  the  defendant  could  not 
legally  carry  on  any  part  of  his  business  in  the  public  street  to  the 
annoyance  of  the  public  ;  that  the  primary  object  of  the  street  was 
for  the  free  passage  of  the  public,  and  anything  which  impeded 
that  free  passage  without  necessity  was  a  nuisance;  that  if  the  nat- 
ure of  the  defendant's  business  were  such  as  to  require  the  load- 
ing and  unloading  of  many  more  of  his  wagons  than  could  con- 
veniently be  contained  within  his  own  private  premises,  he  must 
either  enlarge  his  premises  or  remove  his  business  to  some  more 
convenient  spot." 

^StatcY.  Hunter,  106  N.  C.  796,  8  L.  R.  A.  529. 

^Atty-Oen.  v.  Metropolitan  R.  Co.  125  Mass.  515,  28  Am.  Rep.  264;  Savan- 
nah &  T.  R.  Co.  V.  Savannah,  45  Ga.  602 ;  Texas  &  P.  R.  Co.  v.  Rosedale 
S.  R.  Co.  64  Tex.  80;  Eichels  v.  Evansville  St.  R.  Co.  78  Ind.  261;  Carson- 
V.  Central  R.  Co.  35  Cal.  325; Elliott  v.  Fair  Haven  &  W.  R.  Co.  32  Conn. 
579;  Hobart  v.  Milwaukee  City  R.  Co.  27  Wis.  194,  9  Am.  Rep.  461;  HissY. 
Baltimore  &  H  Pass.  R.  Co.  53  Md.  242,  36  Am.  Rep.  371;  Cincinnati  St. 
R.  Co.  V.  Cumminsville,  14  Ohio  St.  523;  Jersey  City  &  B.  B.  Co.  v.  Jersej/ 
City  &  H.  Horse  R.  Co.  20  N.  J.  Eq.  61. 

*Callanan  v.  Qilman,  107  N.  Y.  360. 


Chap.  XII.]     NEGLIGENCE,  ETC.,  OF   EASEMENT  IN  A  WAY.  240 

In  Rex  V.  Gross,  8  Camp.  224,  the  defendant  was  indicted  for 
allowing  liis  coaches  to  remain  an  unreasonable  time  in  a  public 
street,  and  tlie  court  said  :  "  Every  unauthorized  obstruction  of  a 
highway,  to  the  annoyance  of  the  King's  subjects,  is  a  nuisance. 
The  King's  highway  is  not  to  be  used  as  a  stable  yard.  ...  A 
stage-coach  may  set  down  or  take  up  passengers  in  the  street,  tliis 
being  necessary  for  public  convenience;  but  it  must  be  done  in  a 
reasonable  time,  and  private  premises  must  be  provided  for  the 
coach  to  stand  while  waiting  between  the  end  of  one  journey  and 
the  commencement  of  another." 

In  Rex  V.  Jones,  3  Camp.  230,  the  defendant,  a  lumber  mer- 
chant in  London,  was  indicted  for  the  obstruction  of  a  part  of  a 
street  in  the  hewing  and  sawing  of  logs,  and  the  court  said :  "  If 
an  unreasonable  time  is  occupied  in  delivering  beer  from  a  brew- 
er's dray  into  the  cellar  of  a  publican,  this  is  certainly  a  nuisance. 
A  cart  or  wagon  may  be  unloaded  at  a  gate-way,  but  this  must  be 
done  with  promptness.  So  as  to  the  repairing  of  a  house,  the 
public  must  submit  to  the  inconvenience  occasioned  necessarily  in 
repairing  the  house  ;  but  if  this  inconvenience  should  be  prolonged 
for  an  unreasonable  time  the  public  have  a  right  to  complain,  and 
the  party  may  be  indicted  for  a  nuisance.  The  rule  of  law  upon 
this  subject  is  much  neglected,  and  great  advantages  would  arise 
from  a  strict,  steady  application  of  it.  I  cannot  bring  myself  to 
doubt  the  guilt  of  this  defendant.  He  is  not  to  eke  out  the 
inconvenience  of  his  own  premises  by  taking  in  the  public 
highway  with  his  lumber-yard  ;  and  if  the  street  be  too  narrow 
he  must  move  to  a  more  convenient  place  for  carrying  on  his 
business." 

In  Commonwealth  v.  Passmore,  1  Serg.  &  R.  217,  the  defend- 
ant, an  auctioneer,  was  indicted  for  a  nuisance  in  placing  goods 
on  the  foot-way  and  carriage-way  of  one  of  the  public  streets  of 
the  city  and  suffering  them  to  remain  for  the  pui-pose  of  being 
sold  there,  so  as  to  render  the  passage  less  convenient,  although 
not  entirely  to  obstruct  it,  and  tlie  court  said  :  "It  is  true  neces- 
sity justifies  actions  which  would  otherwise  be  nuisances.  It  is 
true  also  that  this  necessity  need  not  be  absolute ;  it  is  enough  if 
it  be  reasonable.     No  man  has  a  right  to  throw  wood  or  stones 


■250  IMPOSED    DUTIES,    PERSONAL.  [Part    I. 

into  the  street  at  his  pleasure.*  But,  inasmuch  as  fuel  is  neces- 
sary, a  man  may  throw  wood  into  the  street  for  the  purpose  of 
having  it  carried  to  his  house,  and  it  may  lie  there  a  reasonable 
time.  So,  because  building  is  necessary,  stones,  bricks,  lime,  sand 
and  other  materials  may  be  placed  in  the  street,  provided  it  be 
•done  in  the  most  convenient  manner.  On  the  same  principle  a 
merchant  may  have  his  goods  placed  in  the  street  for  the  purpose 
of  removing  them  to  his  store  in  a  reasonable  time.  But  he  has 
no  right  to  keep  them  in  the  street  for  the  purpose  of  selling  them 
there,  because  there  is  no  necessity  for  it.  ...  I  can  easily  per- 
ceive that  it  is  for  the  convenience  and  the  interest  of  an  auc- 
tioneer to  place  his  goods  in  the  street,  because  it  saves  the  expense 
of  storage.  But  there  is  no  more  necessity  in  his  case  than  in  that 
of  a  private  merchant.  It  is  equally  in  the  power  of  the  auctioneer 
and  the  merchant  to  procure  warehouses  and  places  of  deposit,  in 
proportion  to  the  extent  of  their  business." 

In  People  v.  Cunninghanv,  1  Denio,  524,  the  defendants  were 
indicted  for  obstructing  one  of  the  streets  in  the  City  of  Brook- 
lyn, and  the  court  said :  "  The  fact  that  the  defendants'  business 
was  lawful  does  not  afford  them  a  justification  in  annoying  the 
public  in  transacting  it ;  it  gives  them  no  right  to  occupy  the  pub- 
lic highway  so  as  to  impede  the  free  passage  of  it  by  the  citizens 
generally.  The  obstruction  complained  of  is  not  of  the  tempo- 
rary character  which  may  be  excused  within  the  necessary  quali- 
fications referred  to  in  the  cases  cited,  but  results  from  a  system- 
atic course  of  carrying  on  the  defendants'  business.  It  is  said 
that  this  business  cannot  be  carried  on  in  any  other  manner  at  that 
place  so  advantageously  either  to  individuals  or  the  public.  The 
answer  to  this  is  to  be  found  in  the  observations  of  the  court  in 
BusseWs  Case,  above  cited  :  '  They  must  either  enlarge  their  prem- 
ises or  remove  their  business  to  some  more  convenient  spot.'  Pri- 
vate interests  must  be  made  subservient  to  the  general  interest  of 
the  community." 

In  Welsh  v.  Wilson,  101  E".  Y.  254,  2  Cent.  Rep.  749,  a  case 
where  the  defendant  obstructed  a  sidewalk  in  the  City  of  New 

^Clinton  v.  Howard,  43  Conn.  294;  Dygerl  v.  Schenck,  23  Wend.  446;  Bliss  v. 
Schaub,  48  Barb.  339;  Mould  v.  Williams,  5  C.  B.  469;  Burgess  v.  Gray,  1 
C  B  578;  Linsey  v.  Bushnell,  15  Cona.  225;  Harlow  v.  Humiston,  6  Cow. 
189. 


'Chap.  XII.]    NEGLIGENCE,  ETC.,  OF   EASEMENT  IN  A  WAY.  251 

York  with  skids  a  few  minutes  while  he  was  engaged  in  removing 
two  large  cases  of  merchandise  from  his  store  to  a  truck,  in  conse- 
quence of  M'hich  the  plaintiff  claimed  to  have  been  injured  while 
passing  through  the  street,  it  was  said  :  "  The  defendant  had  the 
right  to  place  the  skids  across  the  sidewalk  temporarily  for  the  pur- 
pose of  removing  the  cases  of  merchandise.  Everyone  doing  busi- 
ness along  a  street  in  a  populous  city  must  have  such  a  right,  to  be 
•exercised  in  a  reasonable  manner,  so  as  not  to  unnecessarily  incum- 
ber and  obstruct  the  sidewalk." 

In  Mathews  v.  Kelsey,  5S  Me.  56,  the  court  said :  "As  an  inci- 
dent to  this  right  of  transit,  the  public  have  a  right  to  load  and 
Tinload  such  vehicles  (in  the  street  or  from  the  street)  as  they  find 
it  convenient  to  use.  But  in  this  respect  each  individual  is  re- 
strained by  the  rights  of  others.  He  must  do  his  work  in  such 
careful  and  prudent  manner  as  not  to  interfere  unreasonably  with 
the  convenience  of  others."  So  obstruction  of  the  easement  un- 
lawfully by  telegraph  poles  or  wires  negligently  strung,  or  by  an 
electric  or  steam  railway,  is  a  nuisance  ;'  and  such  obstructions 
Jiave  often  been  held  to  be  nuisances,  even  when  authorized." 
But  there  are  many  cases  which  hold  that  the  use  is  the  true  test, 
and  permit  the  employment  of  steam  or  electricity  to  move  street 
cars,  and  the  placing  of  poles  in  the  street.^  The  omission  to 
•station  flag-sentinels,    or  to  give   some   other    proper    wai-ning, 

^Beg.   V.  United  Kingdom  E.  Teleg.  Co.  3  Fost.  &  F.  73;  Pennsylvania  R.  Co. 

V.  Minh,  115  Pa.  514,  4  Cent.  Rep.  276;  Dickey  v.  Maine  Teleg.  Co.  46 

Me.  483;  Thomas  y.  Western  Union  Teleg.  Co.  100  Mass.  156. 
^Stanley  v.  Davenport,  54  Iowa,  463;  Ead  End  St.  R.  Co.  v.  Doyle,  88  Tenn. 

747;  Western  Union  Teleg.  Co.  v.  Williams  (Va.  March  27,  1890)  8  L.  R.  A. 

429;  Jersey  City  &  B.  R.  Co.  v.  Jersey  City  &  H.  Horse  R.  Co.  20  N.  J.  Eq. 

61;  Reichert  y.  St.  Louis  d-  S.  F.  R.  Co.  51  Ark.  491,  5  L.  R.   A.   183; 

Glassner  v,  Anheuser-Busch  Brew.  Asso.  100  Mo.  508;  Willis  v.  Erie  Teleg. 

<&  Teleph.  Co.  37  Minn.  347  (divided  court).    See  also  cases  cited  in  notes, 

ante,  p.  97. 
*Mount  Adams  &  E.  P.  I.  R.  Co.  v.  Winslow,  3  Ohio   Circuit  Ct.  Rep.  425; 

Pelton  V.  East  Cleveland  R.  Co.  (Ct.  Com.  Pleas  Cuyahoga  Co.  Ohio)  22 

Ohio  L.  J.  67,  affirmed  on  appeal  to  circuit  court,  4  Harvard  Law  Rev. 

258;  Taqqart  v.  Newport  St.  R.  Co.  16  R.  I. ,  7  L.  R.  A.  205;  Balseyv. 

Rapid  Transit  R.  Co.  47  N.  J.  Eq.  ,  decided  Dec.  6,  1890;  Brirjgs  v. 

Lewiston  &  A.  H.  R.   Co.  79  Me.  363;  Williams  v.  City  Electric  St.  R.  Co. 

41  Fed.  Rep.  556;  JVetcellv.  Minneapolis,  L.  &  M.  R.  Co.  35  Minn.  112,  59 

Am.  Rep.  303;  Detroit  City  R.  Co.  v.  Mills  (Circuit  Ct.  Wayne  Co.  Mich. 

1890)  4  Harvard  Law  Rev.  260:  Louisville  Bagging  Mfg.   Co.  v.  Central  P. 

B.   Co.  (Louisville  Law  and  Equity  Ct.  June  30,  1890)  4  Harvard  Law 

Rev.   260;  T^onergan  v.  Lafayette  St.  R.   Co.  (Lafayette  Circuit  Ct.  lud. 

July  9,  1890)  4  Harvard  Law  Rev.  260. 


252  IMPOSED  DUTIES,  PERSONAL.  [Part  L 

while  its  employes  are  engaged  in  stringing  wires  over  the 
street  for  telegraph  or  telephone  purposes,  is  an  act  of  neg- 
ligence, entitling  one  injured  thereby  to  maintain  an  action, 
against  the  corporation.'  The  right  to  lay  railroad  tracks  in 
a  street  carries  with  it  the  obligation  to  lay  the  tracks  in  a. 
proper  manner  and  keep  them  in  repair,  and  if  an  injury  occur 
by  neglect  in  either  of  these  respects,  the  railroad  company  is 
liable/  Where  the  defect  is  immediately  connected  with  the 
track  and  is  plainly  visible  to  the  employes  of  the  railroad,  the 
duty  of  remedying  the  defect  is  affirmative  and  absolute  and  na 
notice  is  necessary.*  It  is  their  duty  to  know  it.  Where  plain- 
tiff was  driving  a  pair  of  horses  over  the  railroad  track,  which, 
crossed  a  public  street,  when  one  of  them  stepped  into  a  hole  at 
the  crossing,  and  was  thrown  down  and  injured,  the  railroad  was- 
held  liable.^  It  is  the  duty  of  a  railroad  company  to  maintain 
street  or  highway  crossings,  changed  by  it  for  its  own  purpose  and 
convenience,  in  a  reasonably  safe  condition  for  passage.*  It  may 
be  that,  even  where  a  railroad  company  changes  the  face  of  a 
highway  for  its  own  convenience,  it  is  not  bound  to  make  it  safer 
for  travelers  upon  it  than  its  use  for  a  railroad  will  permit,  and 
that  one  who  walks  upon  it  is  bound  to  know  that  it  is  a  railroad 
track,  and  is  not  safer  for  use  for  passage  than  the  object  for  which 
it  is  devoted  will  allow;  but  there  may  still  be  a  recovery  where 
the  unsafe  condition  of  the  track  is  due  to  the  negligence  of  the- 
company,  and  the  plaintiff,  while  using  such  care  as  a  prudent  and 
careful  person  of  adult  age  would  use  in  making  his  way  along  a 
track  traversing  the  street,  had  his  foot  caught  in  the  track,  and 
the  railroad  company  was  negligent  in  managing  its  train,  and  by 

^Western  Union  Teleg.  Go.  v.  Et/ser,  91  U.  S.  495,  23  L.  ed.  377,  note. 

^Fash  V.  Thi7-d  Ave.  B.  Co.  1  Daly,  148;  Cumberland  Valley  B.  Co.  v.  Ettghes,. 
11  Pa.  141. 

^Barton  v.  Syracuse,  36  N.  Y.  58. 

*Worsier  v.  Forty-Second  St.  &  G.  St.  Ferry  B.  Co.  50  N.  Y.  203.  See  Car- 
penter V.  Central  Park,  N.  &  E.  R.  Co.  11  Abb.  N.  S.  416;  Fash  v.  Third 
Ave.  B.  Co.  1  Daly,  150;  Brooklyn  v.  Brooklyn  City  B.  Co.  47  N.  Y.  475; 
McMahon  v.  Second  Ave.  B.  Co.  75  N.  Y.  231;  Holmes  v.  Delaware,  L.  & 
W.  R.  Co.  89  N.  Y.  212. 

^Delzell  V.  Indianapolis  &  C.  B.  Co.  32  Ind.  45;  Indianapolis  <&  St.  L.  B.  Co. 
V.  Stout,  53  Ind.  143;  Louisville,  N.  A.  &  C.  B.  Co.  v.  Smith,91  Ind.  119;, 
South  &  North  Alabama  B.  Co.  v.  McLendon,  63  Ala.  266;  Kelly  v.  South- 
ern Minn.  B.  Co.  28  Minn.  98;  Oliver  v.  Northeastern  B.  Co.  9  Moak,  Eng> 
Rep.  350;   2  Wood,  Ry.  Law,  1382. 


Chap.  XII.]      NEGLIGENCE,  ETC.,  OF    EASEMENT  IN  LIGHT.  253 

reason  thereof  the  plaintiff  M'as  injnred.'  Where  plaintiff's  sleigh 
was  upset  by  striking  against  a  switch  in  a  street,  which  projected 
above  the  level  of  the  street,  the  railroad  was  liable,  whether  the 
neo-ligence  was  in  placing  the  switch  improperly  or  in  failing  to  keep 
it  in  proper  order."  So  a  railroad  will  be  liable,  for  such  imper- 
fect condition  of  a  street  crossing,  to  its  employe  for  an  injury.' 

2.  In  Light. 

In  the  case  of  Schiooerer  v.  BoyUtoh  Market  Asso.^  99  Mass. 
285,  it  was  clear  that  the  passageway  could  not  be  built  over,  be- 
cause the  grant  to  the  plaintiff  expressly  provided  that  it  should 
not  be  "  subject  to  have  any  fence  or  building  erected  thereon," 
and  because  the  other  parts  of  the  deed,  and  the  facts  of  the  case, 
showed  that  the  intention  of  the  parties  was  that  it  should  be  in  the 
nature  of  an  open  court  or  street. 

In  Brooks  v.  Reynolds^  106  Mass.  31,  the  passageway  was  ex- 
pressly declared  to  be  "  for  light  and  air,"  and  it  was  held  that  it 
could  not  be  covered  in  whole  or  in  part. 

The  cases  of  Salishury  v.  Andreios,  128  Mass.  336,  and  Atty- 
Gen.  v.  Williams,  140  Mass.  329,  were  decided  upon  the  ground 
that  the  terms  of  the  grant  and  the  surrounding  circumstances 
showed  that  the  purpose  was  that  the  passageways  in  question 
should  be  kept  open  and  unobstructed,  substantially  as  streets  or 
courts,  not  only  for  the  purpose  of  passing  and  repassing,  but  also 
for  purposes  such  as  streets  are  ordinarily  used  for, — for  light,  air 
and  pi'ospect. 

In  Burnham  v.  JSfevins,  144  Mass.  88,  3  New  Eng.  Eep.  792, 
the  grant  was  of  "  a  right  and  privilege  in  common  with  me,  my 
heirs  and  assigns,  in  a  5-foot  passageway,  leading  from  the  north- 
easterly corner  of  said  land  to  said  Belknap  Street."  In  the  same 
breath,  the  grantor  reserved  to  himself  "  the  right  and  privilege  of 
using  as  a  passageway,  in  common  with  said  grantees,  their  heirs 
and  assigns,  a  strip  of  land,  five  feet  wide,  across  the  northerly  end 
of  said  granted  premises,  the  said  passageway  to  be  maintained 

^Louisville,  N.  A.  &  C.  R.  Co.  v.  Phillips,  112  Ind.  59,  11  West.  Rep.  119. 
,       ^WooUy  V.  arand  St.  &  N.  R.  Co.  83  N.  Y.  121. 

^Snow  V.  Housatonic  R.  Co.  8  Allen,  441.     See  ante,  p.  68  et  seq. 


254  IMPOSED  DUTIES,  PERSONAL.  [Part  L. 

and  supported  at  tlie  common  expense  of  the  several  abutters."" 
The  passageway  reserved  was  a  continuation  of  the  passageway 
named  in  the  grant  to  the  plaintiff.  The  effect  of  the  two  clauses 
was  to  provide  for  a  passageway  running  from  Belknap  Street 
(now  Joy  Street)  in  a  westerly  direction,  for  a  distance  of  96  feet, 
across  the  rear  of  the  two  lots  owned  by  the  plaintiff  and  the 
defendant.  It  was  only  five  feet  in  width  and  had  no  outlet  at  the- 
westerly  end.  It  was  too  narrow  to  be  used  for  horses  and  carriages, 
and  clearly  was  not  designed  for  such  use.  It  was  not  of  the  char- 
acter of  a  street  or  court.  The  purpose  seems  to  have  been  to 
provide  a  narrow  footway  leading  to  the  rear  of  the  defendant's 
and  plaintiff's  lots,  and  of  the  lot  next  westerly  of  the  plaintiff's,, 
and  of  the  lot  on  the  northerly  side  of  the  way,  designed  for  pass- 
ing and  repassing  on  foot  and  for  carrying  in,  in  small  vehicles,, 
articles  necessary  for  family  use,  and,  generally,  to  be  used  as  such 
ways  are  ordinarily  used  in  a  large  city.  The  grants  to  the  plain- 
tiff and  to  the  other  abutters  contained  no  provision  that  the  way  was 
to  be  kept  open  to  the  sky  for  light  or  air  or  prospect.  One  of 
the  other  grantees,  one  Perkins,  was  permitted,  without  remon- 
strance on  the  part  of  the  common  grantor,  to  erect  a  house  with 
twenty-two  windows  overlooking  the  passageway;  and  to  the  time 
of  suit  no  abutter  on  the  passageway  had  objected  to  such  windows. 
The  court  said  :  "  We  cannot  distinguish  this  case  from  the  two 
cases,  above  cited,  of  Athins  v.  Bordman^  2  Met.  457,  and  Ger- 
rish  V.  Shattuch,  132  Mass.  235,  and  are  therefore  of  opinion  that 
the  plaintiff  has  not  shown  a  right  to  have  the  passageway  open 
and  unobstructed  from  the  ground  upwards  for  its  full  width  of 
five  feet.  The  provisions  in  subsequent  deeds  of  the  grantor,  of 
other  lots  abutting  on  the  passageway,  do  not  lead  us  to  any  other 
conclusion  ;  and  we  are  not  able  to  see  how  the  fact  that  Perkins 
opened  windows  overlooking  the  way,  in  his  house  on  the  lot  north 
of  it,  has  any  material  bearing  on  the  case.  He  could  not  thereby 
acquire  an  easement  of  light  and  air;  the  defendant  and  his  pre- 
decessors in  title  had  no  right  to  prevent  his  opening  windows,, 
and  their  silence  cannot  justly  lead  to  the  inference  that  the  pas- 
sageway was  laid  out  for  the  purposes  of  light  and  air,  and  thus 
enlarge  the  grant  to  the  plaintiff."  The  extent  of  a  grantee's  right 
(on  other  streets  or  passageways)  beyond  the  limits  of  his  land,  will; 


Chap.   XIT.]    NEGLIGENCE,  ETC.,  OF   EASEMENT  IN  WATER.  255 

depend  upon  the  nature  and  character  of  the  way  and  its  connec- 
tion with  the  public  streets,  as  affording  a  convenient  outlet  from 
his  land,  althou<>:h,  when  defined  by  a  plan,  it  extends  to  the  whole 
M^ay  as  so  defined.' 

In  Re  29th  Street,  1  Hill,  189,  the  court  says:  "I  do  not  say 
that  his  dedication  will  extend  to  all  his  lands  on  the  site  of  the 
street,  however  remote  from  the  lots  sold ;  but  it  will,  I  think,  ex- 
tend to  all  his  land  on  the  same  block,  or,  in  other  words,  to  the 
next  cross  street  or  avenue  on  each  side  of  the  lots  sold."  But  the 
exhibition  of  a  passageway  on  a  plan  referred  to  in  conveyances  gives 
no  "  easement  or  other  interest "  in  the  passageway  to  grantees  of 
land  "  remote  from,  not  immediately  connected  with,  the  lot  sold." ' 

If  one  entitled  to  a  window  of  defined  limit,  overlooking 
an  adjacent  estate,  through  negligence  or  intent  suffer  it  to  be- 
come enlarged,  he  does  not  thereby  forfeit  his  right  to  the  original 
limited  space,  but  the  owner  of  the  adjacent  estate  may  close  the 
extended  space.*  But  if  in  doing  this  the  owner  of  the  servient 
estate  negligently  obstruct  the  original  limited  space,  he  will  be- 
come a  tort-feasor  and  liable  in  damages.*  Nor  will  a  changed 
use  of  a  room  from  a  hall  to  a  parlor  authorize  the  closing  of  the 
window  in  the  latter."  But  if  the  light  be  altered  to  the  disad- 
vantage of  the  servient  estate,  the  owner  of  the  latter  may  change 
it.'  So  extending  a  wall  and  changing  its  form  will  destroy  the 
prescriptive  right  to  a  window.* 

3.  In  Water  Katurally  and  Artificially  Flowing. 
—Harvesting  Ice. 

One  entitled  to  the  use  of  water  must  proportion  his  care  to  the 
known  danger  of  injury  to  others  from  its  escape.     The  pipes  and 

^Langmaid  v.  Biggins,  129  Mass.  353,  358.     See  Fox  v.  Union  Sugar  Ref.  10» 

Mass.  292,  297;  Stetson  v.  Dow,  16  Gray.  873. 
» Cited  in  Boston  Water  Co.  v.  Boston,  127  Mass.  374;  Williams  v.  Water  Co. 

134  Mass.  406. 
^Coolidge  v.  Dexter,  129  Mass.  167,  169,  note. 
*Chandler  v.  Thompson,  3  Camp.  80. 
^Tapling  v.  Jones,  13 C.  B.  N.  S.  876;  ThomasY.  Thomas,  2  Cromp.  M.  &  R. 

33,  40. 
^Luttrel's  Case,  4  Coke,  87/1. 
■>6arritt  v.  Sharp,  3  Ad.  &  El.  325. 
»Blanchard  v.  Bridges,  4  Ad.  &  El.  176;  Hutchinson  v.  Copestdke,  9  C.  B, 

N.  S.  863. 


256  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

resisting  apparatus  must  correspond  with  the  pressure  to  be  sus- 
tained.' The  occupant  of  an  upper  floor  in  a  building  will  be 
liable  for  failure  to  exercise  such  dihgence,  to  one  on  a  lower  floor 
suffering  injury  from  the  neglect.*  So  he  will  be  liable  for  the 
act  of  a  servant  or  guest.^  But  the  fact  that  one  of  several  per- 
sons who  liave  a  right  of  use  in  common  is  guilty  of  negligence 
will  not  charge  them  with  liability."  A  landlord  may  render 
himself  liable  for  permitting  the  use  of  water  apparatus  in  a  de- 
fective condition,  if  he  knew  of  the  defect,  or  with  the  use  of 
reasonable  diligence  could  have  discovered  it.*  If  he  is  guilty 
of  no  neo-liffence  in  orisrinal  construction  or  want  of  care  in 
preservation  he  is  not  liable.*  He  will  be  liable  where  he  oc- 
cupies part  of  the  premises,  to  a  tenant  of  his  occupying  anothei 
part,  where  through  negligence  he  permits  floods  to  penetrate  the 
premises  and  injure  the  tenant's  goods,  although  the  tenant  has  no 
covenant  requiring  the  landlord  to  repair.'' 

A  party  sufliering  damage  from  the  negligent  or  improper  con- 
struction of  a  railroad  bridge  over  a  stream  of  water  crossing  his 
right  of  way  may  treat  it  as  temporary,  and  sue  for  injury  from 
its  continuance,  instead  of  for  the  whole  injury  to  the  value  of 
his  property.*  But  a  notice  that  one's  predecessor  had  obstructed 
the  flow  of  water  along  a  natural  bed  does  not  charge  the  person 
to  whom  it  is  given  with  knowledge  that  he  is  continuing  a  tres- 
pass, where  it  does  not  come  from  one  having  any  ownership  in 
or  along  the  bed  or  watercourse  which  is  the  subject  of   notice.' 

^New  Fork  v.  Bailey,  2  Denio,  438;  Wendell  v.  Pratt,  12  Allen,  464;  Robin- 
son V.  Black  Diamond  C.  Co.  50  Cal.  460;  Richardson  v.  Eier,  34  Cal.  63, 
37  Cal.  263. 

^Stapenhorst  v.  American  Mfg.  Co.  15  Abb.  Pr.  N.  S.  855;  Moore  v.  Goedel, 
34  N.  Y.  527;  White  v.  Montgomery,  58  Ga.  204;  Weston  v.  Tailors  of  Pot- 
terrow,  14  C.  F.  1282.     See  Terry  v.  New  York,  8  Bosw.  504. 

^Simonton  v.  Loring,  68  Me.  164;  Killion  v.  Power,  51  Pa.  429;  Robbins  v. 
Mount,  4  Robt.  553. 

'^Moore  v.  Goedel,  34  N.Y.  527.     See  Ortmayer  v.  Johnson,  45  111.  469. 

^Warren  v.  Kauffman.  2  Phila.  259;  Worthington  v.  Parker,  11  Daly,  545; 
Bedell  V.  Long  Island  R.  Co.  44  N.  Y.  367-370;  Wooden  v.  Austin,  51 
Barb.  9. 

^Carstnirs  v.  Taylor,  L.  R.  6  Exch.  217;  Everett  v.  Hydraulic  Flume  Tun- 
nel Co.  23  Cal.  225;  Fraler  v.  Sears  Union  Woier  Co.  12  Cal.  555. 

'^ Stapenhorst  v.  American  Mfg.  Co.  15  Abb.  Pr.  N.  S.  355. 

^Chicago,  B  &  Q.  R.  Co.  v.  Shaffer,  124  111.  112,  14  West.  Rep.  139;  Mc- 
Connel  v.  Kibbe,  29  111.  483. 

^Schlag  v.  Jones,  181  Pa.  62. 


Chap.  XII.]       NEGLIGENCE,    ETC.,    OF    EASEMENT    IN    "WATER.  257 

While  authority  given  by  charter,  to  "  take,  detain  and  use  the 
water"  of  a  certain  pond  and  streams  tributary  thereto,  authorizes 
a  water  supply  company  to  detain  the  water  in  the  pond,  thus 
flowing  the  lands  of  proprietors  on  the  pond  and  streams  above, 
and  lessening  the  natural  flow  below,  yet  such  proprietors  are  en- 
titled to  a  statutory  remedy  for  the  damages.'  The  same  liability 
exists  where  wells  are  drained." 

Ownership  of  a  strip  of  the  shore  of  a  pond  gives  no  right  to  flsh 
in  the  pond  as  against  the  owner  of  the  land  under  the  water.'  The 
owner  of  the  bed  of  a  stream, which  can  be  used  for  boating  only  be- 
cause the  depth  of  the  water  is  increased  by  a  dam,  has  the  right  as 
the  riparian  proprietor  on  a  private  stream  to  obstruct  it  by  posts 
and  chains  to  prevent  the  use  of  boats  thereon  by  the  public."  Nor 
can  a  statute  declaring  a  river  to  be  a  public  highway,  but  without 
making  any  provision  for  compensation  to  riparian  owners  who 
may  be  damaged  by  the  use  of  the  stream  for  the  purposes  of 
navigation,  have  the  effect  to  make  it  a  public  highway,  unless  it 
is  navigable  in  point  of  fact.^  Rights  in  a  stream  cannot  be 
acquired  by  a  non-riparian  owner,  except  by  grant  or  prescription 
or  estoppel ;  and  one  removing  obstructions  from  a  stream,  under 
a  license  so  to  do,  for  the  privilege  of  turning  other  waters  into 
it,  and  not  for  the  right  to  use  the  natural  flow  of  the  water, 
acquires  thereby  no  holding  adverse  to  a  lower  holder  who  has  the 
right  to  use  the  natural  flow  of  the  water.' 

The  grantor  of  a  right  to  dig  a  ditch  across  his  farm,  and  to 
maintain  it  to  secure  a  supply  of  water  from  a  spring,  is  under  no 
duty  to  keep  the  ditch  in  repair  or  prevent  his  cattle  from  tramp- 
ling in  it  while  pasturing  on  the  farm.'  The  right  to  use  a 
spring  will  not  be  held  to  include,  for  the  purpose  of  drawing 
water,  the  whole  of  a  bog  or  peat-bed  covering  more  than  a  quarter 

Ungraham  v.  Camden  &  B.  Water  Co.  82  Me.  335 ;  Schaefer  v.  Marthaler  34 
Minn.  487. 

'^Trmcbridge  v.  Brookline,  144  Mass.  189.  3  New  Eng.  Rep.  789;  Allen  v.  Sad- 
ler, 66  Miss.  221.  But  see  Greenleafy.  Francis,  18  Pick.  117;  Chamnore 
V.  Richards,  7  H.  L.  Cas.  349;  Wilson  v.  New  Bedford,  108  Mass.  261. 

^Decker  Y.  Baylor,  133  Pa.  168. 

^Bourke  v.  Davis,  L.  R.  44  Cli.  Div.  110. 

"Olive  V.  State,  86  Ala.  88,  4  L.  R.  A.  33. 

^ Paige  v.  Rocky  Ford  Canal  &  I.  Co.  83  Cal.  86. 

''Joslin  V.  Sones  (Iowa,  June  5,  1890)  45  N.  W.  Rt-p.  917. 

17 


258  niPOSED  DUTIES,  PERSONAL.  [Part  I. 

of  an  acre  of  land,  into  which  a  pole  can  be  run  down  10  feet  or 
more,  where  there  is  but  one  place  from  which  the  water  runs  off, 
which  is  walled  up  in  a  rude  way,  and  the  water  runs  off  from 
this  through  a  small  channel  about  a  foot  deep.* 

The  owner  of  a  mine  may  build  a  dam  to  protect  himself  from 
water,  if  he  use  due  diligence  that  it  does  not  have  the  effect  to 
collect  water  from  the  adjacent  territory,  and  eventually  cast  it 
upon  a  lower  mine."^  A  city  property  owner  has  a  right  to 
prevent  surface  water  from  flowing  over  his  land  by  the  building 
of  a  wall,  even  though  thereby  the  water  is  forced  back  into  the 
street;  and  his  act  in  building  such  wall  will  not  prevent  a  recovery 
from  the  city  for  damages  to  his  property  from  the  improper  con- 
struction of  a  drain  to  carry  off  such  water.^  A  person  having  the 
right  of  flowage  through  another's  yard,  while  not  exercising  his 
right,  must  not  negligently  injure  nor  actively  interfere  with  ordi- 
nary farm  fences,  maintained  by  the  owner  of  the  servient  estate  for 
the  protection  of  his  land.^  Where  the  owner  of  a  right  conveys 
it  with  the  right  to  use  an  underground  drain  passing  through  an- 
other lot  owned  by  him,  a  subsequent  collection  of  money  from 
him  by  the  grantee  for  repairs  of  the  drain  does  not  constitute  a 
grant  thereof  or  create  an  estoppel.^  The  fact  that  a  riparian 
owner  purchases  the  right  of  way  through  the  channel  of  a  creek 
to  flow  waters  brought  to  the  creek  by  artificial  means  does  not 
show  that  the  stream  is  not  a  natural  watercourse.*  Where  a. 
person  having  the  right  of  flowage  through  another's  land  is  not 
exercising  his  right,  the  owner  of  the  servient  land  may  maintain 
the  ordinary  farm  fences  required  for  the  protection  of  his  land,, 
and  the  person  entitled  to  flowage  has  no  right  to  interfere  with 
such  fences.  The  owner  of  soil  over  which  the  defendant  claims 
an  easement  has  all  the  rights  and  benefits  of  ownership  consistent 
therewith.  He  is  entitled  to  the  herbage  growing  thereon  and  to 
use  it  for  raising  crops  or  for  pasturing  his  cattle.'' 

^Joslin  V.  Sones  (Iowa,  June  5,  1800)  45  N.  W.  Rep.  917. 
^Jones  V.  Robertson,  116  111.  543,  3  West.  Rep.  581. 
^Gross  V.  Lampasas,  74  Tex.  195. 

^Smiih  V.  Langewald,  140  Mass.  205,  1  New  Eng.  Rep.  449. 
^Munsion  v.  Reid,  46  Hun,  399. 
^Paige  v.  Rocky  Ford  Canal  &  I.  Go.  83  Cal.  86. 

''Sinithv.  Langewald,  140  Mass.  305, 1  New  Eng.  Rep.  419:  Perley  v.  Chandler, 
6  Mass.  454;  Adams  v.  Emerson,  6  Pick.  57;  Atkins  v.  Bordman,  2  Met.  457. 


Chap.  XII.]    NEGLIGENCE,    ETC.,    OF    EASEMENT    IN    WATER.  259 

The  servitude  of  a  drain  througli  a  canal  is  continuous  and  ap- 
parent, and  may  be  acquired,  in  Louisiana,  by  a  possession  of  ten 
years.'  In  the  grant  of  a  right  of  drainage  ''in  and  througli"  a 
certain  private  way,  the  right  of  drainage  to  an  outlet  beyond  the 
way  is  not  conferred  as  an  incident  to  the  easement  granted." 

An  unlawful  obstruction  to  navigation,  being  a  common  nui- 
sance, is  remediable  by  indictment  or  by  abatement;  or  a  court  of 
equity  may  take  jurisdiction  upon  an  information  tiled  by  the  attor- 
ney-general.^ But  it  would  seem  strange  to  see  the  ice-harvesters 
accused  of  nuisance.  Indeed,  nuisance  exists,  in  lawful  business, 
only  where  actual  injury  is  sustained.  It  must  be  some  essential  in- 
jury and  damage.  "People  living  in  cities  and  large  towns  must  sub- 
mit to  some  annoyance,  to  some  inconvenience,  to  some  injury  and 
damage ;  must  even  yield  a  portion  of  their  rights  to  the  necessi- 
ties of  business."*  In  an  English  case  it  was  said  :  "  Where  great 
works  are  carried  on,  which  are  the  means  of  developing  the  na- 
tional wealth,  persons  must  not  stand  on  extrem.e  rights,  and  bring 
actions  for  every  petty  annoyance.'"  The  law,  in  facilitating  the 
enjoyment  of  public  rights,  scans  closely  the  grounds  upon  which 
it  admits  the  advantage  of  one  person  to  be  set  off  against  the  dis- 
advantage of  another.  In  an  early  English  case"  an  extreme  rule 
was  promulgated,  in  later  cases  not  fully  assented  to,  that  the 
staiths  erected  in  the  River  Tyne  should  not  be  regarded  as  a  pub- 
lic nuisance,  if  the  public  benefit  produced  by  them  countervailed 
the  prejudice  done  to  individuals, —  the  supposed  public  benefit 
being  that  in  consequence  of  the  erections,  coals  would  be  brought 
to  the  London  market  in  better  condition  or  for  lesser  price.  In 
subsequent  cases  it  has  been  maintained  that  the  benefit  to  be  de- 
rived from  tolerating  any  impairment  of  the  navigable  conven- 
ience must  be  direct,  and  that  the  staiths  in  the  Tyne  were  a  re- 
jnote  and  indirect  benefit  merely,  and  not  computable  as  a  f>ublic 
benefit  in  the  sense  of  the  term  in  which  it  should  be  used  when 
considering  the  question  of  nuisance ;  and  it  has  been  explained 

^Levet  V.  LapeyroUerie,  39  La.  Ann.  210. 

2  Wetmore  v.  Fiske,  15  R.  I.  366,  4  New  Eng.  Rep.  794. 

3  Gould,  Waters,  §  121. 
<Wood,  Nuis.  11. 

^St.  Helen's  Smelting  Co.  v.  Tipping,  11  Jur.  785. 

^Cox  V.  Russell,  6  Barn.  »&  C.  568.     See  Re  Barre  Water  Co    (Vt    May  28 
1890)  9  L.  R.  A.  195.  '       ' 


260  IMPOSED    DUTIES,  PERSONAL.  [Part    I. 

that  the  benefit  must  be  a  public  benefit  to  the  same  public ;  that 
the  same  public,  or  some  part  of  the  public,  which  suffers  the  in- 
convenience, must  also  receive  the  benefit;  that  it  must  be  both 
beneficial  and  injurious  to  the  public  using  the  same  waters.  A 
satisfactory  explanation  of  the  doctrine  appears  in  a  discussion  ])y 
Jessel,  M.  R.,  in  Attorney-General  v.  Terry,  L.  R.  9  Ch.  423, 
where  he  says :  "  Then  it  may  be  asked,  "What  is  a  public  benefit? 
In  my  view,  it  is  a  benefit  of  a  similar  nature,  showing  that  on  a 
balance  of  convenience  and  inconvenience  the  public  at  that  place 
not  only  lose  nothing,  but  gain  something,  by  the  erection."  In 
that  case  it  was  decided  that  any  benefit  in  the  way  of  gaining 
trade,  to  a  single  individual  erecting  a  wharf  in  navigable  waters, 
was  too  remote  to  be  held  to  be  for  the  advantage  of  the  public 
generally,  when  the  channel  intruded  upon  was  so  narrow  that 
every  foot  of  it  was  wanted  for  navigation.  In  the  opinion  an 
illustration  of  public  benefit  is  given  by  supposing  the  piers  of  a 
bridge  to  be  placed  in  the  middle  of  a  navigable  river,  thereby 
"  to  some  extent,  to  a  more  or  less  material  extent,  obstructing  the 
navigation,"  but  the  necessity  is  great  and  the  injury  trifling.  In 
that  case,  says  the  opinion,  "it  M^ould  be  a  benefit  that  would 
counterbalance  the  public  injury." 

In  Woodman  v.  Pitman,  79  Me.  456,  4  New  Eng.  Rep.  699,  it 
was  held  that  the  right  of  traveling  upon  the  ice  of  a  river  and 
the  right  of  cutting  and  taking  the  ice  are  natural  and  common 
rights.  That  the  right  of  way  over  the  ice  in  a  river  where  large 
quantities  of  ice  are  annually  taken  for  commercial  purposes,  and 
where  the  traveler  is  provided  with  good  roads  upon  either  bank  of 
the  river,  and  at  established  ferries  across  the  river,  is  not  a  para- 
mount right,  and  as  the  Legislature  may  regulate  conflicting  public 
interests  in  the  ice  upon  a  tidal  river,  so  in  the  absence  of  legis- 
lative regulation  such  matters  necessarily  become  the  subjects  of 
judicial  interpretation ;  and  the  law  has  within  itself  elastic  and 
creative  force  enough  to  adapt  itself  to  such  questions.  It  was 
said  :  "  Applying  the  doctrine  as  carefully  as  it  is  guarded  in 
the  cases  most  widely  differing  from  the  case  of  Cox  v.  Russell,  6 
Barn.  &  C.  566,  we  feel  assured  that  our  conclusions  are  correct 
in  sustaining  the  contention  of  the  present  defendants.  Here  the 
ice-gatherer  and  the  traveler  belong  to  the  same  public ;  have  pre- 


Chap.  XIL]       NEGLIGENCE,    ETC.,    OF  EASEMENT    IN    WATER.  261 

sumably  interests  alike;  were  using  the  same  river — the  same 
waters  —  though  in  different  waj'S.  The  ice-takers  were  occupy- 
ing the  river  under  the  natural  right  of  dipping  water  therefrom, 
and  it  is  as  if  thousands  of  men  were  simultaneously  exercising  the 
right  together.  The  enterprise  directly  fosters  the  interests  of 
navigation  on  the  river.  On  the  other  hand,  the  right  of  travel, 
so  far  as  pertaining  to  the  navigation  of  the  river,  is,  under  the  cir- 
cumstances, at  most,  a  secondary,  theoretical  right,  and  of  no  real 
and  essential  value.  Even  private  property  may  be  taken  for 
public  use  by  affording  compensation.  Here,  if  the  traveler  is  not 
allowed  the  use  of  the  river,  it  is  because  more  than  compensation 
is  supplied  to  him  in  other  roads  provided  for  his  use.  We  think 
the  trial  was  conducted  upon  a  too  literal  application  of  the  prin- 
ciples which  govern  the  use  of  navigable  streams,  and  that  the 
jury  were  thereby  prejudiced  against  the  defendants  to  their  in- 
jury. These  views  being  accepted,  it  necessarily  follows  that  this 
portion  of  the  river  should  be  considered  as  virtually  closed  dur- 
ing the  winter  against  general  traveling.  The  whole  tract  cut 
over  must  be  constantly  beset  with  danger  to  a  traveler  who  does 
not  keep  up  an  especial  acquaintance  with  the  condition  of  the 
ice.  Besides,  the  ice-fields,  after  they  have  been  staked  and  fenced 
and  scraped — and  in  some  instances  connecting  fields  extend  across 
the  river — have  so  far  become  the  property  of  the  appropriator, 
that  an  action  would  lie  against  one  who  disturbs  his  possession.' 
At  the  same  time  the  appropriators  should,  by  suitable  means, 
reasonably  guard  their  fields  against  exposing  to  danger  persons 
who  may  be  likely  to  innocently  intrude  upon  them,  if  such  like- 
lihood may  be  seen  to  exist."  But  it  was  ruled  that  when  that  is 
not  done,  and  a  traveler  carelessly  drives  into  an  opening  or  upon 
thin  ice,  caused  by  the  ice  operations,  and  is  damaged,  he  cannot 
recover  from  the  ice-cutter. 

Where  the  defendant  had  put  a  large  quantity  of  logs  on  the 
ice  of  a  river  and  exercised  no  further  care  in  regard  to  them, 
and  on  the  ice  breaking  up  the  injury  was  caused  by  the  jam  on 
the  ice  whereby  a  channel  was  cut  through  the  land  of  the  plain- 
tiff, and  the  logs  carried  upon  it,  the  defendant  was  held  liable  for 
the  injury  to  the  land.'' 

^People's  Ice  Co.  v.  Steamer  Excelsior,  44  Mich.  229. 
^George  v.  Fi^ik,  32  N.  H.  32. 


262  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

c.  Identity  of  Use. 

In  order  to  secure  the  benefit  of  prescription,  due  care  must  be 
used  to  preserve  the  identity  of  the  easement  claimed.  Thus 
where  an  old  ditch  was  used  for  sixteen  years  and  was  then  filled  up 
and  a  new  ditch  built  some  feet  distant,  which  was  used  for  four 
years,  the  time  of  using  the  two  cannot  be  tacked  on  so  as  to  make  a 
prescriptive  right  of  twenty  years.' 

It  is  not  necessary  that  the  person  claiming  a  prescriptive  right 
to  the  use  of  water  should  have  used  it  in  the  same  precise  manner 
during  the  twenty  years,  or  that  it  should  have  been  used  to  propel 
the  same  machinery.  All  that  the  law  requires  is  that  the  mode 
or  manner  of  using  the  water  shall  not  have  been  materially  varied 
to  the  prejudice  of  others."  A  continued  use  of  the  water,  by 
flowing  it  back  upon  the  lot  above,  or  detracting  from  the  value 
of  its  use  below",  for  more  than  twenty  years,  would  ripen  into  a 
legal  right,  and  a  grant  would  be  presumed.^  That  flush-boards 
have  been  put  on  much  higher,  and  been  so  used  to  plaintiff's  in- 
jury, does  not  forfeit  the  actual  right  of  the  defendants.* 

If  the  deviation  in  use  is  caused  by  natural  obstructions,  this 
will  not  change  the  identity  to  defeat  the  prescription ;'  nor  if 
made  by  the  consent  of  the  owner.°  A  change  caused  by  good 
husbandry  will  not  afliect  an  easement,  either  natural  or  established 
by  prescription.^  The  same  proof  of  user  which  establishes  the 
right  is  equally  conclusive  in  establishing  the  limitations  of  that 
right.' 

The  occasional  removal  of  flush-boards,  so  as  to  relieve  an  upper 

^Totelv.  Bonnefoy,  123  111.  653,  12  West.  Rep.  781. 

Welknap  v.  Trimble,  8  Paige,  577,  3  N.  Y.  Ch.  L.  ed.  281;  Smith  v.  Adams, 
6  Paige,  435,  3  N.  Y.  Cli.  L.  ed.  1051;  Kidd  v.  Laird,  15  Cal.  ISl;  BuUen 
V.  Runnels,  2  N.  H.  255. 

'Townsend  v.  McDonald,  14  Barb.  467.     See  Stiles  v.  Hooker,  7  Cow.  266. 

*Eall  V.  Augsbury,  46  N.  Y.  625;  Baldwin  v.  Calkins,  10  Wend.  169;  Ham- 
ilton V.  White,  5  N.  Y.  9;  Wright  v.  Moore,  38  Ala.  598;  Whittier  v.  Co- 
checo  Mfg.  Co.  9  N.  H.  454;  Payne  v.  Shedden,  1  Mood.  &  R.  382;  Carr  v. 
Foster,  3  Q.  B.  581;  Morris  v.  Commander,  3  Ired.  L.  510;  Qerengerv. 
Summers,  2  Ired.  L.  229. 

^Gentleman  v.  Sotile,d2  111.  271. 

*£elsey  v.  Furman,  36  Iowa,  614;  Com.  v.  Old  Colony  &  F.  R.  R.  Co.  14 
Gray,  93. 

''Peck  V.  Herrington,  109  111.  611. 

^Burnham  v.  Kempton,  44  N.  H.  90;  Smith  v.  Buss,  17  Wis.  228. 


Chap.  XII.]  IDENTITY    OF    USE.  2G3 

mill,  will  not  destroy  the  idcntit}'  of  the  use.'  The  extent  of  the 
flowing,  rather  than  the  height  of  the  dam,  is  the  true  test.'  One 
cannot,  however,  change  the  use,  as  from  an  irrigating  ditch  to  a 
mill-race,  increasing  the  flow.' 

If  an  easement  during  the  pleasure  of  a  third  person  is  valid,  it 
requires  plain  words  to  create  and  identify  it,  and  it  cannot  be  in- 
ferred from  long  continued  use.*  In  the  absence  of  an  agree- 
ment and  assertion  of  positive  right,  no  length  of  time  creates 
any  easement  by  which  the  owner  of  lower  land  is  prevented  from 
using  his  lands  as  he  sees  fit,  although  such  use  as  he  puts  them  to 
lessens  the  facilities  for  the  surface  drainage  of  an  adjacent  owner, 
so  long  as  the  lower  proprietor  erects  no  barriers  to  the  free  and 
full  flow  of  the  surface  waters.^  Piling  wood  in  an  alley  near 
the  end  will  not  interrupt  prescription,  if  there  is  space  enough 
left  for  easy  passage  with  a  team."  Statutory  provisions  usually 
merely  fix  the  time  in  which  a  right  by  prescription  shall  be  ac- 
quired, and  do  not  alter  the  requisites  which  at  common  law  were 
open  to  the  growth  of  the  prescriptive  right;  and,  accordingly,  to 
perfect  an  easement  by  occupancy  under  such  statutes  the  enjoy- 
ment must  be  adverse,  continuous,  open  and  peaceable,  under  a 
claim  of  right.^  When  user  has  been  adverse  for  more  than  sixty 
years,  a  mere  casual  remark  made  by  the  owner  of  the  dominant 
to  the  owner  of  the  servient  estate,  at  about  the  middle  of  the 
period,  is  to  be  received  with  caution,  when  offered  to  prove  the 
origin  of  the  user  in  a  license.*  Servitudes  and  easements  and 
other  charges  on  land  are  deemed  to  be  in  the  sense  of  the  law 
immovables  and  governed  by  the  lex  rei  sitae.  Thus,  Judge  Story 
declares  that  "not  onlj^  lands  but  servitudes  and  easements  and 

^Hall  V.  Augshury,  46  N.  Y.  623. 

^Meriz  v.  Dorney,   35  Pa.  519;  Pen-in  v.  Garfield,  37    Vt.  310;  Carlisle  v. 

Cooper,  19  N.  J.  Eq.  260;  Williams  v.  Nelson,  23  Pick.  141. 
^Darlington  v.  Painter,  7  Pa.  473. 
^Johnson  V.  Knapp,  150  Mass.  267.     As  to  identification  of  easement,  see 

Leonard  v.   Bart  (N.  J.   Dec.  31,  1885)  1  Cent.  Rep.  673;  Snyder's  App. 

(Pa.  June  17,  1887)  6  Cent.  Rep.  270;  Long  v.  Gill,  80  Ala.  408;  FitrMarg 

R.  Co.  V.  Frost,   147  Mass.  118,  6  New  Eng.  Rep.  374;  Rmoell  v.  Doggeit, 

143  Mass.  483,  3  New  Eng.  Rep.  756. 
«  White  V.  Sheldon  (Sup.  Ct.  Dec.  30,  1889)  28  K  Y.  S.  R.  475. 
^McKimie  v.  Elliott  (111.  June  12,  1890)  24  N.  E.  Rep.  965. 
''Thomas  v.  England,  71  Cal.  456. 
^Wangery.  Uipple(Pi\.  March  19,  1888)  11  Cent.  Rep.  776. 


264  IMPOSED  DUTIES,  PERSONAL.  [Fart  I. 

other  charges  on  lands,  as  mortgages  and  rents  and  trust  estates^ 
are  deemed  to  be  in  the  sense  of  the  law  immovables  and  governed 
by  the  lex  rei  sitCB.  The  only  process  by  which  title  can  be  made 
to  such  liens,  or  the  only  way  by  which  such  liens  can  be  enforced, 
is  that  of  the  situs^^ 

d.  Appropriating  for  an  Easement. 

On  appropriating  for  an  easement,  the  owner  retains  every 
right  not  inconsistent  with  the  easement,  as  the  right  to  ice 
formed  on  the  easement,  minerals  under  the  land  appropriated 
and  the  soil,  gravel,  trees  and  herbage.  Even  the  grant  of 
an  easement  to  the  public,  as  a  street  or  a  highway  (whether 
by  dedication  or  deed),  would  not  convey  a  fee  in  the  soil, 
but  simply  a  right,  the  reasonable  use  of  which  would  be  pro- 
tected by  law,  under  the  police  regulations  alone,  which  make  the 
wrongful  obstruction  of  a  public  street  a  misdemeanor,  punishable 
under  the  provisions  of  the  criminal  law.  So  a  structure  which 
projects  over  a  street  of  a  city,  as  a  cornice  of  a  building,  is  a  nui- 
sance which  the  corporate  authorities  may  abate,*  as  it  is  the  duty 
of  the  authorities  to  keep  the  streets  reasonably  safe.^ 

In  Bybee  v.  State,  94  Ind.  443,  it  is  held  that  a  bridge  across  a 
street,  for  private  use,  is  an  indictable  nuisance,  although  it  is  so 
high  above  the  surface  as  not  to  impede  the  passage  of  ordinary 
vehicles.  It  is  only  figuratively  speaking  that  the  rights  of  the 
public  in  a  public  street  or  highway  extend  beneath  the  surface 
to  the  centre  of  the  earth  and  above  its  surface  to  the  highest 
heavens,  so  that  no  person  may  wrongfully  obstruct  such  public 
rights ;  and  whether  or  not  the  particular  structure  erected  or 
maintained  obstructs  or  may  obstruct  wrongfullj^  the  public  street 
or  highway,  is  a  question  of  fact  for  the  jury.* 

In  Goodtitle  v.  Alker,  1  Burr.  133,  it  was  said  of  a  way  that 
"  the  owner  of  the  soil  has  a  right  to  all  above  and  under  ground, 

'Whart.    Confl.  Laws,   §  291;  Pittsburgh  &  State  Line  B.  Go.  v.  Bothschild 

(Pa.  May  31,  1886)  4'Cent.  Rep.  107. 
'^Qrove  v.  Fort  Wayne,  45  Ind.  439. 
^Higert  v.  Oreencastle,  43  Ind.  574. 
*Bybee  v.  State,  94  Ind.  443;  Grove  v.  Fort  Wayne,  45  Ind.  429,  15  Am.  Rep. 

262;  Genterville  v.  Woods,  57  Ind.  193;  Logansport  v.  Dicks,  70  Ind.  65,  36 

Am.  Rep.  166. 


Chap.  XII.]         APPROPRIATING    FOR    AN    EASEMKNT.  2G5 

except  only  the  right  of  passage  for  the  King  and  liis  people." 
In  Julien  v.  Woodsmall,,  82  Ind.  5G6,  approved  in  Brookville  <& 
M.  IlydrauliG  Co.  v.  Butler,  91  Ind.  137,  it  was  held  that  ice 
formed  on  the  right  of  way  of  the  party  belongs  to  the  owner  of 
the  soil,  who  may  maintain  an  action  against  a  person  who  removes 
it  without  his  consent ;  and  the  owner  of  the  fee  is  not  only  owner 
of  the  minerals  under  the  land  appropriated,  but  also  owner  of  the 
soil,  gravel,  trees  and  herbage,  except  as  needed  by  the  company 
in  constructing,  repairing  and  operating  its  road.'  One  who  owns 
land  subject  to  an  easement  has  no  right  to  use  it  in  a  way  incon- 
sistent therewith.'  The  extent  of  the  easement  must  be  de- 
termined by  the  true  construction  of  the  grant  or  reservation  by 
which  it  is  created,  aided  by  any  circumstances  surrounding  the 
estate  and  the  parties  which  show  their  intentions.'  The  mode 
and  extent  of  the  use  necessarily  varies  not  only  according  to  the 
exigencies  of  each  particular  kind,  but  to  the  varying  circum- 
stances of  each  species,  of  public  works.*  In  Massaeh'isetts  the 
town  is  liable  for  "damages  occasioned  by  laying,  making  or 
maintaining "  a  sewer.*  The  provision  in  the  Railroad  Act  is 
similar — "  damages  occasioned  by  laying  out,  making  and  main- 
taining its  road.'-*  The  provision  in  regard  to  public  ways  is  * 
"  If  damage  is  sustained  by  any  person  in  his  property  by  the 
laying  out.'"  Pub.  Stat.,  chap.  14,  §  16,  which  also  applies  to 
sewers,  provides  that,  in  estimating  the  damage,  "  regard  shall  be 

^TaylMV  V.  New  York  &  L.  B  R.  Go.  38  N.  J.  L.  28;  Preston  v.  Dubuque  <St 
P.  R.  Co.  11  Iowa,  15;  Aldrich  v.  Drury,  8  R.  I.  554;  Hassan  v.  Oil  Creek 
A.  R.  R.  Co.  8  Phila.  556;  Pittsburgh  &  L.  E.  R.  Co.  v.  Bruce,  104  Pa. 
23;  Piatt  v.  Pennsylvania  Co.  43  Ohio  St.  223,  1  West.  Rep.  11, 

'  *Burnham  v.  Nevins,  144  Mass.  88,  3  New  Eng.  Rep.  792. 

*Brainard  v.  Clapp.  10  Gush.  10;  Hayden  v.  Shillings,  78  Me.  413,  3  New 
Eng.  Rep.  174;  Bakeman  v.  Talbot,  31  N.  Y.  366;  IlempJull  v.  Boston,  8 
Gush.  195;  Cowling  v.  Eigginson,  4  Mees.  &  W.  245;  Brown  v.  Stone,  10 
Gray,  61;  Gerrard  v.  Cooke,  2  Bos.  &  P.  N.  R.  109;  Fitzell  v.  Leaky,  72 
Gal.  477;  Alexander  v.  Tolleston  Club,  110  III.  Q5;  Rowell  v.  Dor/gett,  143 
Mass.  483,  3  New  Eng.  Rep.  756;  Sutton  v.  Groll,  42  N.  J.  Eq.  213,  4 
Cent.  Rep.  251;  Gerrish  v.  Shattuck,  132  Mass.  235;  Kansas  Cent.  R.  Co. 
V.  Allen,  22  Kan.  285.  See  ante,  p.  241,  note  1;  Adams  v.  Emerson,  6 
Pick.  57;  Appleton  v.  Fullerton,  1  Gray,  186;  Codman  v.  Evans,  1  Allen, 
443;  Stackpole  v.  Healy,  16  Mass.  33;  Worcester  v.  Western  R.  Corp.  4 
Met.  564,  569;  Atkins  v.  Bordman,  2  Met.  457,  467;  Pkipps  v.  Johnson, 
99  Mass.  26. 

»Pub.  Stat.  chap.  50,  §  3. 

•Pub.  Stat.  chap.  112,  §  95. 

■"Pub.  Stat.  chap.  49,  §  68. 


2G6  IMPOSED  DUTIES,  PERSONAL.  [Part  I. 

had  to  all  the  damages  done  to  the  party,  whether  bj  taking  his 
property,  or  injuring  it  in  any  manner."  Under  these  provisions 
damages  can  be  recovered  for  injuring  land  not  taken,  and  not 
abutting  upon  land  taken.*  In  Trowhridge  v.  Broohiine^  144 
Mass.  139,  3  New  Eng.  Rep.  789,  the  respondent  contended  that 
it  had  the  right  of  an  owner  of  the  land  taken  to  make  excava- 
tions in  it  and  thereby  drain  its  neighbor's  well ;  that  its  act,  with- 
out the  authority  and  protection  of  the  statute,  was  lawful  and 
invaded  no  right  of  the  petitioner,  and  gave  her  no  right  of  action; 
and  that,  in  accordance  with  the  decisions  under  the  English  Land 
Claim  Act,  the  statute  should  be  construed  to  intend  only  damages 
which,  but  for  the  protection  of  the  statute,  could  be  recovered 
by  action,'  But  it  was  ruled  that  the  respondent  does  not  stand, 
in  this  respect,  in  the  position  of  a  purchaser  of  the  land  taking 
the  rights  of  its  grantor.  It  is  not  the  absolute  owner  of  the 
land,  but  took  and  holds  the  right  to  occupy  it  for  certain  pur- 
poses, and  to  do  upon  it  certain  acts  authorized  by  the  statute.  In 
■exercising  its  rights  it  acts,  not  under  the  title  of  the  owner,  but 
by  virtue  of  the  authority  given  by  a  statute,  and  under  the  obli- 
gation imposed  by  the  statute  to  pay  all  damages  occasioned 
thereby.  The  petitioner  had  a  right  to  collect  and  keep  the  water 
in  her  well,  and  depriving  her  of  it,  if  it  injured  her  land,  was  a 
damage  to  her.  It  is  no  answer  that  other  land  owners  had  the 
same  right  in  respect  to  their  lands,  and  that  if  the  petitioner's 
damages  had  been  in  consequence  of  the  exercise  of  those  rights 
in  his  land  by  a  land  owner,  she  could  not  have  recovered  the  dam- 
ages from  him.  The  respondent's  rights  in  the  land,  and  authority 
to  do  the  act  which  caused  the  damage,  are  given  by  the  same 
statute  which  gives  a  remedy  to  the  petitioner  to  recover  the  dam- 
ages. The  precise  question  presented  here  was  decided,  in  regard 
to  a  railroad,  in  Parker  v.  Boston  &  M.  R.Go.,  3  Cush.  107.  In 
that  case  damages  were  alleged  to  have  been  occasioned  in  the 
construction  of  a  railroad,  to  land  not  within  and  adjoining  the 
location  of  the  road,  by  changing  the  grade  of  a  highway  and  by 
draining  a  welL     It  is  not  suggested  that  either  would  be  a  cause 

^ Dodge  v.  E-^ftex  County  Gimra.  3  Met.  380;  P^'ker  v.  Boston    &  M.  li.  Co.  3 

Cush.  107;  Marsden  v.  Cambridge,  114  Mass.  490. 
'See  New  River  Co.   v.   Johnson,  3  El.  &  El.  435;  Metropolitan   Board  of 

Works  V.  McCarthy,  L.  R.  7  H.  L.  243. 


■Ohap.  XII.]  APPROPEIATING   FOR   AN    EASEMENT.  267 

•of  action  at  common  law.  Mr.  Chief  Justice  Shaw  says  that  the 
main  question  in  the  case  is  "whether  a  party  having  land  with 
buildings  thereon,  lying  near  the  track  of  a  railroad,  but  not 
crossed  by  it,  can  recover  compensation  for  incidental  damage 
caused  to  his  land  by  the  construction  of  the  railroad  and  the 
structures  incident  to  and  connected  with  it,"  and  his  conclusion 
is  "  that  a  party  who  sustains  an  actual  and  real  damage,  capable 
of  being  pointed  out,  described  and  appreciated,  may  sue  a  com- 
plaint for  compensation  for  such  damages."  In  regard  to  the 
well  he  says :  "  The  claim  for  damages  on  this  ground  does  not 
<3epend  on  the  relative  rights  of  owners  of  land,  each  of  whom 
has  a  right  to  make  a  proper  use  of  his  own  estate,  and  sinking  a 
well  upon  it  is  such  proper  use  ;  and  if  the  water,  by  its  natural 
current,  flows  from  one  to  the  other,  and  a  loss  ensues,  it  is  dam- 
num  absque  injui^ia.  But  the  respondents  did  not  own  land ; 
they  only  acquired  a  special  right  to  and  usufruct  in  it,  upon  the 
•condition  of  paying  all  damages  which  might  be  thereb}'  occasioned 
to  others." 

Marsden  v.  Camhridge,  ll'i  Mass.  490,  is  directly  to  the  point 
that  the  petition  for  damages  for  taking  land  for  a  highway  is  not 
a  substitute  for  an  action  at  law.  In  that  case  the  petitioner  owned 
one  half  of  a  dwelling-house  and  the  land  under  it.  Part  of  the 
land  under  the  other  half  of  the  house  was  taken  for  a  highway, 
and  part  was  left  between  the  location  and  the  petitioner's  land 
and  half  of  the  house.  The  owner  of  the  other  half  removed  it. 
occasioning  loss  of  support  and  shelter  to  the  petitioner's  half. 
The  court  decided,  without  regard  to  the  petitioner's  rights  as 
between  himself  and  the  adjoining  owner,  that  the  petition  could 
be  maintained.  Mr.  Justice  Wells  says  :  "  By  the  laying  out  of 
the  street,  the  petitioner  was  deprived  of  the  support  and  shelter 
for  his  house  from  the  other  part  of  the  double  structure  which 
rested  upon  the  land  of  his  neighbor,  and  was  consequently  put 
to  the  expense  of  a  new  wall  for  his  own  part.  For  the  continu- 
ance of  that  support  and  shelter,  of  which  he  was  in  the  actual 
enjoyment,  he  had  at  least  the  title  and  assurance  arising  from 
mutual  necessity  and  natural  advantage,  of  which  no  one  but  his 
neighbor  could  deprive  him.  That  security  Avas  taken  away  by 
the  location  of  the  street  in  such  manner  as  substantially  to  destroy 


268  IMPOSED  DUTIES.  PERSONAL.  [Part  I, 

the  part  of  the  building  upon  the  adjoining  land,  and  render  it 
unHt  for  further  use  and  maintenance  as  a  dwelling."  The  de- 
cisions in  regard  to  damages  occasioned  by  taking  the  waters  of 
great  ponds  are  also  in  point.  "When  the  Commonwealth  grants 
a  right  to  take  the  water,  a  provision  that  payment  shall  be  made- 
for  all  damages  sustained  by  any  person  in  his  property  by  the- 
taking  is  held  to  include  damages  to  mill  owners  by  depriving^ 
them  of  the  water,  although  they  should  have  no  right  to  it  a& 
against  the  Commonwealth  or  its  grantee.' 
» Watuppa  Reservoir  Co.  v.  Fall  Bicer,  134  Mass.  267. 


PART  II. 

WATERS,  DUTIES  RESPECTING  AND  RIGHTS  THEREIN. 


CHAPTER  XIII. 

RIGHTS  AND  WRONGS  IN  SURFACE  WATERS. 

Sec.  23.  Surface  and  Percolating  Water  and  Artificial  Drainage. 
Sec.  24.  Pollution  of  Underground  Currents,  Springs  and  Streams. 
Sec.  25.  Distinction    hetiueen  the   Rights  in   Surface  and  Suhter- 

ranean  Waters. 
Sec.  26.  Duty  of  Municipal   Corporations,   as   doners  of  Streets, 

Alleys  and  Park^,  not  to  Cast  the  Filth  of  Tlieir  Seioers   U2)0n 

Other  Lands. 
Sec.  27.  Injunction  to  Prevent  Pollution  of  Waters. 
Sec.  28.  Right  of  Land  Owner  to  Control  Mere  Surface  Waters  or 

Superficially  Percolating  Waters. 

Section  '22,.—Surface  and  Percolating   Water  and 
Artificial  Drainage. 

"When  one  erroneously,  but  in  good  faith,  assumes,  without  any 
fault  on  his  part  or  on  the  part  of  the  person  his  action  affects, 
that  he  has  a  right  to  do  what  he  does,  and  his  act,  done  in  the 
assertion  of  his  supposed  right,  turns  out  to  have  been  an  inter- 
ference with  another's  property,  he  is  generally  held  to  have  as- 
sumed the  risk  of  maintaining  the  right  which  he  asserts,  and  the 
responsibility  of  the  natural  consequences  of  his  voluntary  act.' 

"When  the  effect  of  paving  a  yard  is  to  prevent  the  water  pene- 
trating the  soil,  and  the  water  conducted  from  the  roof  to  the 

^Brown  v.  Collins,  53  N.  H.  442;  Clmldre  B.  Co.  v.  Foster,  51  N.  H.  490; 
Metcalf,  /.,  in  Stanley  v.  Gaylord,  1  Gush.  536,  551;  McCloskey  v.  Powell, 
123  Pa.  62;  Concanan  v.  Boynton,  76  Iowa,  543;  Bagley  v.  Stephens,  78 
Ga.  304;  Whitney  v.  Hunlinf/ton,  37  Minn.  197;  Allison  v.  Little,  85  Ala. 
512;  Jeffries  v.  Eargis,  50  Arli.  65;  Little  Pittsburg  Con.  Min.  Co.  v.  Little 
Chief  Con.  Min.  Co.  11  Colo.  223. 


270  IMPOSED   DUTIES,    PERSONAL,  [Part    II. 

privy  is  too  great  for  the  drains  to  carry  away,  an  adjacent  pro- 
prietor may  recover  damages  for  the  escape  of  the  water  without 
proof  of  negligence.'  So  if  the  spout  from  defendant's  roof  cast 
water  upon  plaintiff's  wall  and  destroy  it,  he  is  answerable  for  the 
injury,  without  notice  to  remove  the  spout.''  Damages  may  be 
recovered  for  overflowing  lands  in  building  a  canal,^  or  making  a 
mill-dam  authorized  by  law.*  One  cannot  pollute  the  air  upon  his 
neighbor's  premises,^  nor  abstract  the  soil,"  nor  cast  anything 
upon  his  land.' 

In  Rylands  v.  Fletcher^  L.  E.  3  IT.  L.  330,  where  there  was 
a  reservoir  created  artificially,  from  which  the  water  flowed  through 
some  passages  ajDparently  filled  up  and  long  disused  into  the  plain- 
tiff's mine.  Lord  Cranworth  expressed  the  opinion  that  if  a  person 
bringSjOr  accumulates,on  his  land  anything  which,  if  it  should  escape, 
may  cause  damage  to  his  neighbor,  he  does  so  at  his  peril.  If  it  does 
escape  and  cause  damage,  he  is  responsible,  however  careful  he 
may  have  been,  and  whatever  precautions  he  may  have  taken  to 
prevent  the  damage.  He  distinguishes  between  natural  percola- 
tion, for  which  no  liability  exists,  and  that  which  is  caused  arti- 
ficially.* "Where  nature  is  aided  by  artificial  methods  and  unusual 
quantities  of  water  are  thus  collected  and  used,  the  one  resorting 
to  such  methods  and  such  use,  which  is  called  a  "non-natural"  use, 
will  be  answerable  to  his  neighbor  for  an  injury  resulting,  although 
the  excess  of  water  reach  his  neighbor  through  natural  channels,, 
according  to  the  rule  above  stated.'     This  doctrine,  as  applied  in 

"^Jutte  V.  Hughes,  67  K  Y.  267;  Martin  v.  Benoist,  20  Mo.  App.  262,  2  West. 

Rep.  541. 
'^Copper  V.  Dolvin,  68  Iowa,  757. 
^Selden  v.  Delaware  &  H.  Ganal  Go.  29  N.  Y.  634;   Bradley  v.  New  York  & 

N.  H.  R.  Co.  21  Conn.  294. 
^Crittenden  v.  Wilson,  5  Cow.  165. 
^Morley  v.  Pragnell,  Cro.  Car.  510. 
«Rolle,  Abr.  565,  note. 
"^Lambert  v.  Bessey,  Sir  T.  Rayna.  421. 
«See  also  Fletcher  v.  8mith,  L.  R.  2  App.  Cas.  781,  L.  R.  7  Excb.  305;  Mtro- 

Phosphate  &  0.  G.  M.  Go.  v.  London  &  St.  K  Docks  Go.  L.  R.  9  Ch.  Div. 

503;  Baird  v.  Williamson,  15  C.  B.  N.  S.  37G;   Whitehouse  v.  Felloices,  30  L. 

J.  N.  S.  C.  P.  305;    Beaulieu  v.  Finglam,  2  Hen.  IV.  p.  18,  pi.  6;  CaMll  v. 

Eastman,  18  Minn.  324;  Jones  v.  Festiniog  B.   Co.  L.  R.  3  Q.  B.   733; 

Furlong  v.  Carroll,  7  Ont.  App.  145;  Elwell  v.  Groicther,  31  Beav.  163. 
'See  authorities  last  cited,  and  also  West  Cumberland  Iron  <&  8.  Co.  v.  Ken- 
yon,  L.  R.  6  Ch.  Div.  773,  reversed  on  appeal,  L.  R.  11  Ch.  Div.  782; 

Musgrave  v.  Smith,  37  L.  T.  N.  S.  367;  Gould,  Waters,  §  295. 


Chap.  XIII.]  SUKFACE    WATER   AND    DRAINAGE.  271 

JRylands  v.  Fletcher,  L.  R.  3  II.  L.  330,  has  been  recognized  in 
Massachusetts,  Kentucky  and  Minnesota.'  The  doctrine  is  denied 
in  ISTew  York,  New  Jersey,  New  Hanipsliire  and  California.' 

In  Wilson  v.  New  Bedford^  108  Mass.  2G1,  it  is  said  that  tlie 
cases  in  Yermont  are,  to  some  extent,  in  apparent  conflict  with 
Monson  &  B.  Mfg.  Co.  v.  Fuller.,  15  Pick.  55-i;  Fuller  v.  Chico- 
pee  Mfg.  Co.  16  Gray,  46;  Ball  v.  Nije,  99  Mass.  582 ;  Pixley  v. 
Clark,  35  N.  Y.  520,  and  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330, 
in  that  they  do  not  seem  to  distinguisli,  as  these  authorities  do, 
between  natural  and  artificial  causes  of  injury,  and  a  distinction 
drawn  by  Lord  Cranworth  in  the  last  case  between  natural  perco- 
lation and  that  which  is  caused  artificially  is  pointed  out :  "  If 
water  naturally  rising  on  defendant's  land  had,  by  percolation, 
found  its  way  down  to  plaintiff's  mine  at  the  old  workings,  and  so 
had  impeded  his  operations,  that  would  not  have  afforded  him  any 
ground  of  complaint."  But  after  showing  that  that  is  not  in  the 
cause  of  action,  the  court  proceeds  ;  "  The  defendants,  in  ordei- 
to  attain  an  object  of  their  own,  brought  onto  their  land  or  onto 
land  which,  for  this  purpose,  may  be  treated  as  being  theirs,  a 
large  accumulated  mass  of  water,  and  stored  it  up  in  a  reservoir. 
The  consequence  of  this  was  damage  to  the  plaintiff,  and  for  that 
damage,  however  skillfully  and  carefully  the  movement  was  made, 
the  defendants,  according  to  the  principles  and  authorities  to 
which  I  have  adverted,  were  certainly  responsible."  The  effect 
of  the  decision  in  Pixley  v.  Clark,  35  N.  Y.  520,  was  that, 
although  the  artificial  embankment  prevented  the  water  from 
overflowing  onto  the  neighboring  land,  yet  the  owner  of  the  em- 
bankment would  be  liable  for  injury  caused  by  excessive  percola- 
tion upon  the  neighboring  land. 

In  Losee  v.  Buchanan,  51  N".  Y.  477,  Earl,  C,  says:  "It  is 
sufiicient,  however,  to  say  that  the  law  as  laid  down  in  these  eases' 
is  in  direct  conflict  with  the  law  as  settled  in  this  country."  Here, 
if  one  builds  a  dam  upon  his  own  premises  and  thus  holds  back 

^Vfihon  V.  New    Bedford,   108    Mass.    261;    Ball    v.  Nye,    99   Mass.    582; 

Shipley  v.  Fifty  Asso.  101  Mass.  251;     Gorham  v.  Gross^,  125  3Iass.  232; 

Hears  v.  Dole,  135  Mass.  508;  Kinnaird  v.  Standard  Oil  Co.  (Ky.  Jan.  25, 

1890)7  L.  R.  A.  451;  Cahill  v.  Eastman,  18  Minn.  324. 
^Losee   v.  Buchanan,    51   N.  Y.  476;   Marshall   v.   Wehcood,  38  N.  J.  L. 

339;  Swett  v.  Cntts,  50  N.  H.  439;  Garland  v.  Toione,  55  N.  H.  56;  Everett 

V.  Hydraulic  Flume  Tunnel  Co.  23  Cal.  225. 
*Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330;  Smith  v.  Fletcher,  L.  R.  7  Exch.  305. 


272  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

and  accumulates  the  water  for  his  benefit,  or  if  he  brings  water 
upon  his  premises  into  a  reservoir,  in  case  the  dam  or  the  banks  of 
the  reservoir  give  way  and  the  lands  of  a  neighbor  are  thus 
flooded,  he  is  not  liable  for  the  damage  without  proof  of  some 
fault  or  jieghgence  on  his  part.* 

The  true  rule  is  laid  down  in  the  case  of  Livingston  v.  Adams, 
8  Cow.  175,  as  follows :  "  Where  one  builds  a  mill-dam  upon  a 
proper  model,  and  the  work  is  well  and  substantially  done,  he  is 
not  liable  to  an  action  although  it  break  away,  in  consequence  of 
which  his  neighbor's  dam  and  mill  below  are  destroyed.  Negli- 
gence should  be  shown  in  order  to  make  him  liable." 

In  Marshall  v.  Welwood,  38  N.  J.  L.  339,  Beasley,  Ch.  J.,  says: 
"  The  fallacy  in  the  process  of  argument  by  which  judgment  is 
reached  in  the  case  of  Fletcher  v.  Rylands,  L.  R.  1  Exch.  280, 
appears  to  me  to  consist  in  this:  that  the  rule  mainly  applicable 
to  a  class  of  cases,  which  I  think  should  be  regarded  as  in  a  great 
degree  exceptional,  is  amplified  and  extended  into  a  general  if  not 
universal  principle." 

In  Garland  v.  Toione,  55  IST.  H.  57,  Ladd,  J.,  referring  to  the 
case  of  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330,  says :  "  I  am 
not  aware  that  any  court  this  side  of  the  Atlantic  has  gone  so  far 
as  this;  and  I  apprehend  it  would  be  a  surprise  "not  only  to  that 
large  class  of  our  people  engaged  in  various  manufacturing  opera- 
tions, who  use  water-power  to  propel  their  machinery  and  for  that 
purj)ose  maintain  reservoirs,  but  to  the  legal  profession,  to  hold 
that  in  case  of  the  breaking  away  of  such  reservoirs  there  is  no 
question  of  care  or  negligence  to  be  tried,  but  that  he  who  has 
thus  accumulated  water  in  a  non-natural  state  on  his  own  prem- 
ises is  liable  at  all  events  as  matter  of  law,  in  case  it  escapes,  for 
the  damage  caused  by  it.  As  a  general  proposition  it  is  safe  to 
say  that  the  owner  of  the  land  has  a  right  to  make  reasonable  use 
of  his  property ;  and  that  right  extends  as  well  to  an  unlimited  dis- 
tance above  the  earth's  surface  as  to  an  unlimited  distance  below."'' 

'Angell,  "Watercourses,  §  336;  Laphamv.  Curtis,  5  Vt.  371;  Todd  v.  Co- 
chell,  17  Cal.  m-,  Everett  v.  Hydraulic  F.  T.  Go.  23  Vt.  235;  Shrewsbury 
V.  Smith,  12  Cush.  177;  Livingston  v.  Adams,  8  Cow.  175;  Bailey  v.  New 
York,  3  Hill,  531,  2  Denio,  433;  Sheldon  v.  Sherman,  42  N.  Y.  484. 

^See  also  Anajell,  Watercourses,  336;  Washburn,  Easements,  chap.  3,  §  7; 
Jones  V.  Western  Vt.  E.  Co.  27  Vt.  399;  Pennsylvania  Coal  Co.  v.  San- 
derson, 113  Pa.  126,  4  Cent.  Rep.  475. 


Oliap,  XIII. J  SL'KFAUE    WATER    AND    DRAINAGE.  ii73 

In  JVichols  r.  MiD'sIand,  L.  R.  10  fixcli.  255,  the  court  sustained 
the  ruling  in  Rijlawh  v.  Fletcher,  L.  II.  3  II.  L.  330,  on  the 
ground  tliat  in  that  case  the  defendant  poured  the  water  into  the 
plaintiffs  mine,  although  innocently,  through  unknown  channels, 
but,  in  the  case  then  under  judgment,  the  defendant  stored  watci'  in 
reservoirs  in  such  quantities  that,  if  let  loose,  it  would  do,  as  it  did, 
mischief;  but  as  the  act  itself  was  lawful,  and  the  escape  was  caused 
bv  the  supervening -y^'i'  major  of  the  water  caused  by  the  flood,  super- 
added to  the  water  in  the  reservoirs — which  of  itself  would  have 
been  innocuous — the  defendant  was  discharged  of  liability.  The 
defendant  could  not  be  said  to  have  allowed  the  water  to  escape, 
if  the  act  of  God  or  national  enemies  were  the  real  cause.  Is  or 
can  he  be  thus  cliai'ged  when  water  is  released  by  the  act  of  a 
third  party ;'  nor  where  the  artificial  construction  is  maintained 
for  the  common  benefit,  and  the  immediate  cause  of  the  injury  is 
of  such  a  trivial  character  as  to  have  been  wholly  unexpected;'' 
nor  where  the  injury  is  done  in  the  exercise  of  powers  specially 
conferred  by  law;'  nor  where  water  escapes  fi-om  an  upper  fioor 
without  negligence  of  tenant  can  the  latter  be  held  liable.'* 

Although  a  work  of  improvement  is  authorized  by  statute  and  the 
act  is  therefore  in  the  exercise  of  a  right,  yet  if  it  is  done  in  such 
a  negligent  manner  as  to  cause  injurj^  to  others,  the  license  will  be 
no  protection.  The  construction  of  a  railroad  in  such  a  manner 
as  to  unnecessarily  cause  a  fiow  of  water  into  a  subjacent  mine 
will  render  the  company  f'esponsible  for  the  injury.^  Where  one 
h:..  wrongfully  accumulated  water,  he  is  responsible  for  damages 
which  may  result  from  the  escape  of  the  water,  although  the  lat- 
ter may  be  without  his  negligence.'  Permitting  sewage  to  escape 
into  an  adjoining  cellar,  from  the  occupier's  sewer  being  out  of 
repair,  will  render  the  latter  liable   without  proof  of  negligence.' 

^Box  V.  Juhh,  L.  R.  4  Exch.  Div.  76. 

'^Carstairs  v.  Taylor,  L.  R.  G  Exch.  217. 

^Madras  R.  Co.  v.  Zemindar,  L.  R.  1  Ind.  App.  3G4,  30  L.  T.  N.  S.  770,   22 
Week.  Rep.  865. 

'^R)ss  V.  Fedden,  L.  R.  7  Q.  B.  661;  Ea/ciiiv.  Brown,  1  E.  D.  Smith,  36. 
^Biignall  v.  London  &  N.   W.  R.   Co.  7  Hurl.  &  N.  423,  affirmed  in  Exche- 
quer Chamber,  1  llurl.  &,  C.  544. 
^Frye  v.  Moor,  53  Me.  583. 

"'Humphries  v.  Cousins,  L.  R.  2  C.  P.  Div.  239;  Martin  v.  Benoist,  20  Mo, 
App.  262,  2  West.  Rep.  541. 

18 


274  IMPOSED   DUTIES,  PERSONAL.  [Part    II. 

Section  24. — Pollutiojb    of   Unclergrouncl    Currents, 
Springs  and  Streams. 

lu  the  recent  case  of  Kinnaird  v.  Standard  Oil  Co.  (Kj.),  T  L. 
R.  A.  451,  decided  Jan.  25,  1890,  the  facts  are  these  :  Kinnaird 
was  the  owner  of  a  small  tract  of  land  containing  about  four  acres^ 
lying  adjacent  to  or  within  the  boundary  of  the  Town  of  Lancas'- 
ter.  On  this  Lmd  is  a  valuable  and  never-failing  spring,  that 
app3ars  upon  the  surface  of  the  ground  at  the  foot  of  a  hill,  and 
had  been  used  as  such  for  a  long  period  of  time.  In  November 
of  the  year  1886  the  Standard  Oil  Company  leased  from  the  Ken- 
tucky Central  Railroad  Company  a  site  upon  which  to  build  a 
warehouse  for  the  storage  of  its  coal  oil.  They  erected  the  ware- 
house, and  placed  in  it  their  coal  oil,  that  leaked  from  the  casks, 
and  saturated  the  ground,  both  on  the  inside  and  outside  of  the 
building.  The  floor  of  the  house  consisted  of  a  bed  of  cinders- 
about  twelve  inches  in  depth,  that  supplied  the  place  of  plank, 
that,  as  the  proof  shows,  would  become  very  inflammable  when 
saturated  with  the  oil.  The  bed  of  cinders,  therefore,  rendered 
the  property  much  more  secure  than  if  a  floor  had  been  laid  in 
the  building.  The  spring  is  located  about  200  yards  from  the  oil- 
house,  with  a  hill  or  rise  in  the  ground  between  the  two,  and  the 
proof  conduces  to  show  that  water  on  the  surface  of  the  ground 
at  the  oil-house  would  naturally  flow  in  an  opposite  direction  from 
the  spring,  because  it  is  lower  than  the  ground  where  the  spring 
emerges  from  the  hill.  After  the  oil  had  been  deposited  in  the 
building  erected  for  that  purpose,  it  leaked  from  the  casks,  and, 
being  of  such  a  penetrating  character,  it  passed  into  the  ground,, 
and  polluted  the  water  or  stream  from  which  the  spring  was  sup- 
plied. The  oil  mingled  with  underground  currents  of  water  that 
fed  the  spring,  and  caused  the  injury.  The  court  below,  on  hear 
ing  the  testimony,  gave  a  peremptory  instruction  to  the  jury,  on 
the  ground  that  no  action  could  be  maintained  for  contaminating 
the  subterranean  water  that  flowed  into  the  spring,  as  the  oil  com- 
pany had  the  right,  in  the  exercise  of  its  legitimate  business,  to 
build  the  house,  and  store  the  oil  within  it,  on  its  own  land,  al- 
though the  property  of  its  neighbor  was  injured  by  it.  It  is  said 
that  if  this  had  been  surface  water,  or  a  vein   of  water  under 


Chap,  XIII.]   POLLUTION  OF  UNDERGROUND  CURRENTS.       275 

ground,  with  a  well-defined  and  known  channel,  thcri<jht  to  main- 
tain the  action  could  not  be  doubted  ;  but  as  to  hidden  or  unknown 
veins  of  water,  the  rule  is  asserted  that  they  belong  to  the  soib 
constitute  a  part  of  it,  and  may  be  used,  controlled  or  removed  by 
the  owner  in  the  same  manner  that  he  could  the  soil  throucrl* 
which  the  water  percolates  or  runs.  The  theory  is  that,  this  watej- 
being  the  property  of  the  owner  of  the  land,  its  use,  if  not  for- 
bidden by  law,  cannot  work  an  injury  to  his  neighbor,  in  the  ab 
sence  of  a  design  to  do  so,  however  great  the  damage  sustained. 
This  view  of  the  legal  rights,  is  admitted  to  be  sustained  by  nu- 
merous reported  cases,  involving  C|uestions  analogous  in  almost 
every  particulai-. 

The  case  of  Brown  v.  lllhis,  reported  in  27  Conn.  84,  was  an 
action  on  the  case  for  a  nuisance,  and  in  the  declaration  it  was 
alleged  that  offensive  matter  in  the  manufacture  of  gas,  deposited 
on  the  surface  of  the  ground,  had  permeated  into  the  soil  around 
and  adjoining  the  well,  and  into  the  well  itself,  corruptino-  the 
water  and  rendering  it  unfit  for  use.  The  court,  in  applyino-  the 
rule  in  regard  to  subterranean  currents,  and  in  discussing  the  in- 
struction given  by  the  lower  court,  held  that  the  ownership  of  the 
land  sanctioned  and  justified  the  use  made  of  it  by  the  defendant, 
and  although  the  latter  was  injured,  if  the  damage  resulted  frou) 
the  mingling  of  the  noxious  matter  with  the  underground  vein  of 
water,  it  was  an  injury  without  any  violation  of  the  plaintiff's  le- 
gal rights  by  the  defendant,  and  the  latter  "  was  under  no  leo;al 
obligation  to  prevent  it  in  the  first  instance,  or  a  continuance  of 
it  afterwards."  The  rule  that  gives  to  the  owner  of  the  soil  all 
that  lies  beneath  its  surface,  whether  oil  or  water,  was  made  to 
apply  in  the  case  cited,  with  the  right  of  the  owner  to  use  it  at 
his  pleasure,  and  in  any  legitimate  Tuode,  and  the  plaintiff  denied 
the  right  of  recovery  upon  that  ground. 

The  case  of  Dillon  v.  Acme  Oil  Co.^  49  Plun,  5G5,  was  whert- 
the  plaintiff  owned  two  lots,  upon  which  he  had  erected  dwell- 
ings, and  had  dug  a  well  on  each  lot,  that  he  used  for  household 
purposes.  The  defendant  erected  an  oil  refinery  about  300  feet 
distant  from  the  lots  of  the  plaintiff,  and  the  oil,  leaking  on  the 
surface,  had  permeated  the  ground  until  it  reached  some  under- 
ground stream  that  carried  it  to  the  wells  of  the  plaintiff.     An 


276  IMPOSED  DUTIES,  PERSONAL.  [Part  11. 

injunction  was  sought,  but  the  relief  denied,  for  the  reason  that 
the  defendant  had  the  right  to  use  that  which  he  owned  for  legit- 
imate purposes,  provided,  in  doing  so,  he  exercised  proper  care 
and  skill  to  prevent  injury  to  others;  and,  as  an  illustration  of  the 
rule,  it  was  there  said  that  he  might  dig  a  well  or  ditch,  and  cut 
■off  a  hidden  stream  of  water  that  supplied  his  neighbor's  well,  and 
thereby  render  it  useless. 

In  Bloodgood  v.  Ayers,  108  N.  Y.  400,  11  Cent.  Eep.  108,  it 
was  also  held  that  no  person  is  liable  for  interrupting  a  stream  sup- 
plying a  well  or  spring,  unless  he  knew  beforehand  where  the 
stream  was, — a  doctrine  well  settled  by  an  unbroken  line  of  au- 
thority. That  one  may  divert  or  consume  all  the  water  from  un- 
derground currents,  that  have  no  fixed  known  channels,  and 
appropriate  all  the  water  to  his  own  use,  and  that  he  is  the  abso- 
lute owner  of  this  water  while  it  remains  under  his  soil,  with  the 
right  to  appropriate  it  as  he  pleases  for  legitimate  use,  is  also  de- 
cided. This  use  or  right  of  property  is,  however,  only  temporaiy, 
and  remains  only  so  long  as  the  water  stands  on  or  under  his  land. 
He  cannot  follow  it  when  it  leaves  his  premises,  and  passes  to  the 
land  of  his  neighbor ;  and  it  may  therefore  be  said  that  he  has 
not  the  absolute  title,  as  each  owner  of  the  land  is  vested  with  the 
right  to  use  the  water,  and  appropriate  the  whole  of  it  when  it 
reaches  him. 

In  the  case  of  Ujjjohn  v.  Richland  Board,  of  Health,  repoi'ted 
in  46  Mich.  542,  the  opinion  delivered  by  Mr.  Justice  Cooley,  it 
was  held  to  be  an  established  rule  that  owners  of  the  soil  have  no 
rights  in  sub-surface  waters  not  running  in  well-defined  channels, 
as  against  their  neighbors  who  may  withdrav/  them  by  excava- 
tions ;  and  therefore,  if  no  right  of  action  exists  for  ruining  the 
plaintiff's  well  by  withdrawing  the  water,  it  was  said,  perhaps 
without  sufficient  consideration,  that  it  is  difiicult  to  understand 
how  corrupting  its  waters  by  a  proper  use  of  the  adjoining 
premises  can  be  actionable,  when  there  is  no  intent  to  injure,  and 
no  negligence,  as  each  act  would  destroy  the  well  of  the  plaintiff. 

But  the  Supreme  Court  of  Kentucky'  concluded,  however,  after 
a  careful  review  of  the  authorities,  that  there  is  a  manifest  distinc- 
tion between  the  right  of  the  owner  of  land  to  use  the  underground 

^Kinnaird  v.  Standard  Oil  Co.  (Ky.  Jan.  25,  1890)  7  L.  R.  A.  451. 


Chap.  XIII.]   POLLUTION  OF  UNDERGROUND  CURRENTS. 


277 


water  upon  it,  that  originates  from  percolation  or  is  found  in  liid- 
den  veins,  and  the  right  to  contaminate  it  so  as  to  injure  or  destroy 
the  water  when  passing  to  the  adjoining  land  of  his  neighbor. 

The  familiar  doctrine  is  recognized  that  one  must  so  use  his 
property  as  not  to  injure  his  neighbor,  and  it  is  said  because  the 
owner  has  a  right  to  make  an  appropriation  of  all  the  undei-gi-ound 
water,  and  thus  prevent  its  use  by  another,  he  has  no  riglit  to  poi- 
son it,  however  innocent] j.  or  to  contaminate  it,  so  that  when  it 
reaches  his  neighbor's  land  it  is  in  such  condition  as  to  be  unfit 
for  use  either  by  man  or  beast.  One  may  be  entitled  by  contract 
with  his  neighbor  to  all  tlie  water  that  flows  in  a  stream  on  the 
surface  that  passes  through  the  land  of  both,  and,  while  he  can 
thus  appropriate  it,  it  is  denied  that  he  has  a  right  to  pollute  the 
water  in  such  a  manner  as,  when  it  passes  to  his  neighbor,  its  use 
becomes  dangerous  or  unhealthy  to  his  family,  or  to  the  beast  on 
his  farm.  As  soon  as  the  water  leaves  the  land  of  the  one  who 
claims  the  right  to  use  it,  and  runs  on  the  land  of  another,  the 
latter  has  the  same  right  to  appropriate  it,  and,  if  property,  it 
then  becomes  as  much  the  property  of  the  last  as  the  first  pi-opri- 
etor.  The  owner  of  land  has  the  same  right  to  the  use  and  enjoy- 
ment of  the  air  that  is  around  and  over  his  premises  as  he  has  to 
use  and  enjoy  the  water  under  his  ground.  He  is  entitled  to  the 
use  of  what  is  above  the  ground  as  well  as  that  below  it,  and  still 
it  is  said  it  will  scarcely  be  insisted  that  he  can  poison  the  atmos- 
phere with  noxious  odors  that  reach  the  dwelling  of  his  neio-hbor 
to  the  injury  of  the  health  of  himself  or  family.' 

If  not,  the  court  says,  in  lu/maird  v.  Standard  Oil  Co., 
supra,  there  is  no  reason  why  he  should  be  permitted  to  so 
contaminate  the  water  that  flows  from  his  land  to  his  nci^-h- 
bor's,  producing  the  same  results,  and  still  escape  liability  for 
the  damages  sustained,  and  whether  the  water  escapes  the  one 
way  or  the  other  is  immaterial.  The  question  is  stated  thus:  Can 
the  owner,  with  a  knowledge  of  the  penetrating  character  of  its 
oil,  and  the  effects  following  its  leakage,  store  large  quantities  of 
it  near  the  spring  of  the  plaintiff,  when  the  oil  is  seen  in  puddles 
outside  of  the  building,  the  result  of  leakage  of  the  casks  on  the 
inside,  and  resist  the  claim  of  the  plaintiff  on  the  ground  that  it 

^Lambert  v.  Betsey,  Sir  T.  Raym.  431. 


278  IMPOSED  DUTIES,  PERSONAL,  [Part  II. 

did  not  know  the  water  was  affected  by  it  ?  The  injury  has  been 
done,  and  the  court  rules  it  cannot  be  said  that  it  presents  a  case 
of  damnum  absque  injuria. 

The  case  of  Ballard  v.  Tomlinson,  L.  R.  29  Ch.  Div.  115,  21 
Am.  L.  Reg.  N.  S.  631,  contains  what  is  thought  to  be  the  correct 
rule  on  the  subject.  In  that  case  the  water  in  the  plaintiff's  well 
was  injured  by  sewage  from  the  defendant's  well,  and  it  was  ruled 
that  an  injunction  to  restrain  the  defendant  from  so  using  his  well 
was  proper,  and  the  plaintiff  was  entitled  also  to  damages  for  what 
he  had  suffered  by  reason  of  the  pollution.  While  the  unlimited 
rio-ht  to  use  the  percolating  water  was  conceded  to  the  plaintiff, 
the  right  to  contaminate  the  water  so  as  to  render  it  unhealthy  or 
unfit  for  use,  when  it  came  to  his  neighbor's  land,  was  held  to  be 
a  violation  of  plaintiff's  rights,  for  which  an  action  could  be  main- 
tained. 

If  one  has  that  on  his  own  premises  that  is  dangerous,  or 
a  substance  that  he  is  constantly  using  which  is  liable  to  escape 
and  harm  others,  and  injure  the  property  of  his  neighbor,  whether 
above  or  under  the  ground,  or  that  which  his  neighbor  has  the 
right  to  use,  and  he  corrupt  it,  he  must  answer  for  the  conse- 
quences.' 

A  recovery  was  had  against  gas  comjmnies  in  the  cases  of  Otta- 
wa Gas-Light  Co.  v.  Graham,  28  111.  71:;  Pottstown  Gas  Co.  v. 
UuriyJnj.,  39  Pa.  257,  and  Columhus  Gas-Light  Co.  v.  Freehand,  12 
Ohio  St.  392.  In  the  case  in  28  111.  71,  the  gas  company  erected 
works  near  the  dwelling  of  Graham,  and  injured  the  water  in  his  well 
by  permitting  the  substances  used  in  its  manufacture  to  permeate 
the  soil  and  find  their  way  to  plaintiff's  well.  The  court  told  the 
jury  that  if  such  substances  did  soak  into  the  ground,  and  per- 
meate and  pass  along  and  through  the  earth,  mingling  with  the 
water  of  the  well,  and  did  thereby  render  it  nauseous  to  the  taste, 
or  unfit  for  use,  the  jury  should  render  a  verdict  for  the  plaintiff. 
This  branch  of  the  instructions  was  held  to  be  proper,  and  no 
question  raised  as  to  the  right  of  recovery,  if  the  jury  believed 
the  facts  existed  as  alleged  and  proven. 

In  Pottstown  Gas  Co.  v.  Murphy  the  court  held  the  company 
answerable  for  the  corruption  of  the  plaintiff's  well  by  reason  of 
^Kinnaird  v.  Standard  Oil  Co.  (Ky.  Jan.  25,  1890)  7  L.  R.  A.  451. 


Ciiap.  XIIL]        SURFACE    AND    SUBTERRANEAN    WATERS.  279 

fluids  percolating  from  the  works.  The  entire  dominion  of  the 
defendant  over  its  property  in  Kinnaird  v.  /Standard  Oil  Co., 
^iqyra,  is  not  denied,  but  it  liad  no  right,  the  court  ruled,  while  en- 
joying its  use,  although  in  what,  under  ordinary  circumstances, 
•would  be  a  legitimate  way,  to  violate,  by  the  manner  of  its  use,  tlie 
rights  of  others.  It  was  declared  nni-easonable  to  adjudge  that  the 
erection  and  operation  of  gasworks,  or  buildings  for  the  storage  of 
oil,  with  the  noxious  and  injurious  substances,  by  reason  of  the 
dejDOsit  on  the  surface  permeating  the  ground,  and  injuring  or 
"destroj'ing  the  taste  or  use  of  water  belonging  to  and  on  the  prop- 
erty of  others,  is  such  a  legitimate  use  of  one's  property,  and  his 
dominion  over  it,  as  to  preclude  any  recover}'  for  an  injury  to  the 
proj^erty  of  his  neighbor,  however  great ;  and  to  require  a  notice 
that  the  injury  has  been  inflicted  before  the  action  can  be  main- 
tained would,  in  the  view  of  the  court,  be  to  destroy  the  tlieory 
■or  principle  upon  which  a  recovery  in  the  case  is  permitted.  It 
was  argued  that  the  oil  company  was  ignorant  of  the  existence  of 
the  nuisance  or  injury  to  the  spring,  and  had  no  right  to  suppose 
that  its  oil  was  affecting  the  water  in  the  spring  of  the  plaintiff. 
This  may  be  so,  it  is  admitted,  and  still  the  defendant  is  held 
responsible  for  the  injury,  although  it  was  not  aware  that  its  neg- 
lect in  permitting  the  oil  to  leak  from  the  casks,  and  stand  in 
pools  outside  the  building,  had  or  would  work  an  injury  to  the 
plaintiff.  If  it  created  a  nuisance,  whether  negligent  or  not,  the 
oil  company  is  liable. 

Section  25.—DisU7zcfion  hetween  the  Rights  in  Sur- 
face and  Subterranean  Waters. 

The  distinction  between  the  rights  in  surface  and  in  subter- 
ranean waters  is  not  founded  on  the  fact  of  their  location  above 
or  below  ground,  but  on  the  fact  of  knowledge,  actual  or  reasona- 
bly acquirable,  of  their  existence,  location,  course  and  effect.  The 
dividing  line  between  the  right  to  use  one's  own  and  the  duty  not 
to  injure  another's  is  one  of  great  nicety  and  importance,  and  fre- 
quently of  difficulty.  The  decisions  have  endeavored  to  preserve 
the  substance  of  both  rights  as  far  as  their  sometimes  inevitable 
conflict  may  permit. 


280  IMPOSED   DUTIES,  PERSONAL.  [Part   11. 

With  regard  to  the  ponution  of  flowing  water — surface,  perco- 
lating or  in  watercourses — the  case  of  Pennsyloania  Coal  Co.  v. 
Sanderson.,  113  Pa.  126,  4  Cent.  Rep.  475,  definitively  settled  the 
rule,  at  all  events,  in  that  State,  that,  for  unavoidable  damage  to 
another's  land  in  the  lawful  use  of  one's  own,  no  action  can  be 
maintained.  The  contrary  rule  must  restrict  the  uses,  derogate 
from  the  full  enjoyment  and  diminish  the  value  of  property.  But 
the  rule  does  not  go  beyond  natural  use  and  unavoidable  damage  in 
such  use.  It  is  thus  clearly  expressed  in  the  opinion  in  the  case 
cited:  "Every  man  has  the  right  to  the  natural  use  and  enjoyment 
of  his  owm  property;  and  if,  whilst  lawfully  in  such  use  and  enjoy- 
ment, without  negligence  or  malice  on  his  part,  an  unavoidable 
loss  occurs  to  his  neighbor,  it  is  damnum  ahsque  injuria."  That 
this  is  the  rule  as  to  surface  streams  is  generally  conceded,  bat  it 
has  been  contended  that  as  to  subterranean  waters,  or  at  least  as 
to  percolations  and  hidden  streams,  an  owner  was  not  bound  to 
pay  any  attention  to  the  effect  of  his  operations  within  his  OMm 
land  upon  the  land  of  others. 

In  Wheatley  v.  Baugh.,  25  Pa.  528,  the  plaintiff  had  a  spring 
upon  his  property,  which  he  had  used  in  his  tannery  for  more 
than  twenty-one  ^^ears,  when  defendant  opened  a  mine  on  his  ad- 
jacent land,  and  put  in  a  steam  pump  to  take  out  the  water,  with 
the  result  of  drying  up  the  plaintiff's  spring.  It  was  held  that 
plaintiff  had  no  cause  of  action.  This  case  determined  the  law  on 
the  subject  of  control  over  percolating  waters  in  that  State  as  it 
is  held  generally  elsewhere.' 

But  in  Delhi  v.  Youmans,  45  N.  Y.  362,  the  IS'ew  York  court, 
while  recognizing  the  rule,  distinguished  between  preventing 
water  reaching  a  spring  and  the  liability  for  thereafter  drawing  it 
away  after  it  became  part  of  a  running  stream." 

^Johnstown  Cheese  Mfg.  Co.  v.  Veghte,  69  N.  Y.  16;  West  Cumberland  Iron  & 
S.  Co.  V.  Kenyan,  L.  R.  11  Ch.  Div.  782;  Ballacorkish  S.  L.  &  C.  Mm. 
Co.  V.  Harrison,  L.  R.  5  P.  C.  49;  Chasemore  v.  RicJiards,  7  H.  L. 
Cas.  349;  Taylor  v.  Fickas,  64  Ind.  167;  Bassett  v.  Salisbury  Mfg.  Co.  43 
N.  H.  573;  Chase  v.  Siiversione,  62  Me.  175;  Frazier  v.  Broicn,  12  Ohio 
St.  294;  Taylor  v.  Welch,  6  Or.  198;  Roath  v.  'Driscoll,  20  Conn.  533;  Hosier 
V.  Caldicell,  7  Nev.  363;  Dexter  v.  Providence  Aqueduct  Co.  1  Story,  387; 
Clark  V.  Conroe,  38  Vt.  469. 

'See  also  Rawstron  v.  Taylor,  33  Eng.  L.  &  Eq.  428;  Broadbent  v.  Bamsboth- 
am  34  Eng  L.  &  Eq.  553;  Chasemore  v.  Richards,  7  H.  L.  Cas.  319; 
Pixley  V.  Clark,  35  N.  Y.  520;  Goodale  v.  Tutile,  29  N.  Y.  459;  Ellis  v. 
Duncan,  21  Barb.  230,  affirmed  26  How.  Pr.  601. 


Chap.  XIII.]        SURFACE    AXD    SUBTERRANEAN    WATERS.  2S1 

In  Bliss  V.  Greeley,  45  N.  Y.  671,  where  tliere  was  siin|)ly  a 
grant  of  a  right  to  dig  and  stone  np  a  certain  spring  to  conduct 
the  water  therefrom  through  the  grantor's  land,  witli  a  covenant 
of  warranty,  but  no  grant  of  any  particular  snpply  of  water  from 
the  spring  or  from  the  land,  it  was  ruled  that  this  did  not  prevent 
the  grantor  from  sinking  another  spring  on  his  land,  if  at  some 
distance  from  the  one  granted,  although  the  effect  of  it  was  to 
render  the  latter  useless,  provided  the  same  was  not  done  unneces- 
sarily or  maliciously.  The  parties  were  regarded  in  the  same 
"light  as  adjacent  owners,  and  the  rule  was  applied  tliat  the  owner 
might  lawfully  dig  on  her  own  land,  though  the  effect  of  it  was  to 
cut  off  the  water  from  the  plaintiff's  spring  by  percolation.' 

The  owner  of  land  may  cut  down  the  forest  trees,  and  clear  and 
cultivate  his  land,  although  in  so  doing  he  may  dry  up  the  sources 
of  his  neiglibor's  springs  or  remove  the  natural  barriers  against 
wind  and  storm.  If,  in  the  excavation  of  his  land,  he  uncover  a 
spring  of  water,  salt  or  fresh,  acidulated  or  sweet,  he  will  certainly 
not  be  obliged  to  cover  it  again,  or  to  conduct  it  out  of  its  course, 
lest  the  stream  in  its  natural  flow  may  reach  his  neighbor's  land. 
It  has  always  been  considered,  certainly  where  the  rule  of  the  civil 
law  is  recognized  in  regard  to  water,  that  land  on  a  lower  level 
owes  a  natural  servitude  to  that  on  a  higher  level,  in  respect  of 
receiving,  without  claim  for  compensation  by  the  owner,  the  water 
naturally  flowing  down  to  it;'  and  in  sinking  his  well  the  pro- 
prietor may  intercept  and  appropriate  the  water  which  supplies  his 
neiglibor's  well.' 

'"'•  Les  fonds  inferieurs  sont  assujettis,  enver.'i  ceux  qui  sont  plus 
Sieves,  d  recevoir  les  eaux  qui  en  decoulent  naturellement  sans  que 
la  main  de  Vhomvie  y  ait  contrihueP  '"'' Le proprietaire  superieur 
ne  pent  r^en  faire  qui  aggrave  la  servitude  die  fonds  inferi- 
eursT^  (Inferior  lands  are  subjected  as  regards  those  which  lie 
liigh  jr  to  receive  the  waters  which  flow  naturally  therefrom  to  which 

iSee  Johmtmca  Cheese  Mfg.  Go.  v.  Veghle,  69  N.  Y.  16. 

^Lord  V.   Carbon,  Iron,  Mtg.  Co,  42  N.  J.  Eq.  157.  4  Cent.  Rep.  813;   Penn- 

sylcania  Coal  Co.  v.  Sanderson,  113  Pa.  126,  4  Cent.  Rep.  475;  Boyntonv. 

Longley,  19  Xev.  69;  Anderson  v.  Henderson,  124  111.    164;  Jeffcrs  v.   Jcf- 

fers,  107  N.  Y.  650,  9  Cent.  Rep.  875. 
^Frazier  v.  Brown,  12  Ohio  Sr.  294;  Routh  v.  Drisioll,  20  Conn.  533;  Acton 

V.  Blundell.  12  Mees.  &  W.  324;   Wheatley  v.  Baugh,  25  Pa.  528;  Ualde- 

man  v.  Bruckhart,  45  Pa.  514. 

*Code  Civil,  liv.  II.  tit.  IV.  chap.  i.  art.  040. 


282  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

tlie  "hand  of  man  has  not  contributed.  Tlie  proprietor  of  the  lower 
ground  cannot  raise  a  bank  which  shall  prevent  such  flowing. 
The  superior  proprietor  cannot  do  anything  to  increase  the  servi- 
tude of  tlie  lower  lands.) 

A  well  sunk  on  adjoining  premises,  so  near  plaintiff's  well  as  to 
materially  diminish  the  flow  of  water  therefrom,  will  not  be  or- 
dered to  be  closed,  nor  will  the  defendant  be  restrained  from  sink- 
ing other  wells.' 

If  the  well  of  one  land  owner  is  so  close  to  the  well  of  his  nei2:h- 
bor  as  to  require  the  support  of  a  rib  of  clay  or  stone  to  his  neigh- 
bor's land  to  retain  the  water  in  the  well,  no  action  will  lie  against 
the  owner  of  the  adjoining  land  for  digging  away  such  clay  or 
stone  which  is  on  his  property,  and  thereby  letting  out  the  water.* 

The  doctrine  announced  in  Wheailey  v.  Baugh^  supra,  was 
followed  in  Ilaldeman  v.  BrucTcJtart,  45  Pa.  514,  but  was  restated 
rather  narrowly  by  Justice  Strong,  thus :  "  In  that  case  it  was 
ruled  that  where  a  spring  depends  for  its  supply  upon  filtrations 
or  percolations  of  water  through  the  land  of  an  owner  above,  and 
in  the  use  of  the  land  for  mining  or  other  lawful  purposes  the 
spring  is  destroyed,  such  owner  is  not  liable  for  the  damages  thus 
caused  to  the  proprietors  of  the  spring,  unless  the  injury  was 
occasioned  by  malice  or  negligence.  To  such  percolations  or 
filtrations,  then,  the  inferior  owner  has  no  right.  "This  was  all," 
he  says,  "that  was  necessary  to  the  decision  of  the  case."  He  then 
criticises  the  rest  of  the  opinion  in  Wheatley  v.  Baugh  as  dictum, 
and  formulates  the  rule  again  in  the  following  terms :  "A  proj)ri- 
etor  of  land  may,  in  the  proper  use  of  his  land  for  mining,  quarry- 
ing, draining  or  any  other  useful  purpose,  cut  off  or  divert  subter- 
raneous water  flowing  through  it  to  the  land  of  his  neighbor, 
without  any  responsibility  to  that  neighbor."  Thesi  and  like 
forcible  statements  of  the  rule  are  the  main  ground  of  the  con- 
tention constantly  made  that  an  owner  is  not  bound  to  pay  any 
reo-ard  to  the  effect  of  his  operations  on  subterranean  waters.  But 
this  contention  overlooks  the  qualification,  made  in  all  the  cases, 
that  there  must  be  no  negligence,  and,  as  is  said  in  many  cases, 
no  malice,  for  he  who  negligently  or  maliciously  diverts  or  cor- 

^  Ocean   Orom  C.  M.  Asso.  v.  Asbury  Park  Comrs.  40  N.  J.  Eq.  447,  2   Ceat. 

Rep.  180. 
^Pennsylvania  Coal  Go.  v.  Siinderson,  113  Pa.  126,  4  Cent.  Rep.  475. 


Ohap.  XllL]        SUKFACE    AND    SUBTERRANEAN    WATERS.  2S3 

rupts  a  subterranean  stream,  whether  it  is  distinctly  defined  or 
subsists  in  tlie  nature  of  percohition,  so  as  to  deprive  his  neighbor 
of  it,  is  h'able  in  damages.' 

The  opinion  of  Chief  Justice  Lewis  in  Wheatley  v.  Baxujii  is  as 
a,ble,  ehiborate  and  convincing  a  discussion  of  the  sul)ject  as  can 
be  found  reported,  and  in  it  the  necessary  and  unavoidable  char- 
acter of  the  damage  is  explicitly  insisted  on.  "  When  the  titra- 
tions are  gathered  into  sufficient  volume  to  have  an  appreciable 
value,  and  to  flow  in  a  clearly  defined  channel,  it  is  generally  pos- 
sible to  see  it,  and  to  avoid  diverting  it  without  serious  detriment 
to  the  owner  of  the  land  through  which  it  flows.'  But  percola- 
tions spread  in  every  direction  through  the  earth,  and  it  is  impos- 
sible to  avoid  disturbing  them  without  relinquishing  the  necessary 
enjoyment  of  the  land."  "The  owner  of  a  spring,  although  his 
right  is  imperfect  where  the  supply  is  derived  through  his  neigh- 
bor's land,  has  nevertheless  a  privilege  subordinate  only  to  the 
paramount  rights  of  such  neigh boi-;  and  it  is  only  when  the  fair 
■enjoyment  of  those  paramount  rights  requires  its  destruction  that 
he  is  bound  to  submit  to  the  deprivation." 

And  even  in  Haldeman  v.  Bruckhart,  which  is  the  most 
strongly  expi-essed  of  all  the  decisions  in  favor  of  the  rights  of  the 
proprietor  on  his  own  land,  it  is  clear  that  the  same  qualification 
is  not  lost  sight  of,  although  not  prominently  put  forward,  "A 
surface  stream,"  says  Strong,  Ji,  "  cannot  be  diverted  without 
knowledge  that  the  diversion  will  affect  a  lower  proprietor.  JSTot 
so  with  an  unknown  subterraneous  percolation  or  stream.  One 
•can  hardly  have  rights  upon  another's  land  which  are  impercepti- 
ble, of  which  neither  himself  nor  that  other  can  have  any  knowl- 
edge. .  .  .  These  appear  to  us  very  sufficient  reasons  for  dis- 
tinguishing between  surface  and  subterraneous  streams,  and  deny- 
ing to  inferior  proprietors  any  right  to  control  the  flow  of  water 
in  unknown  subterranean  channels  upon  an  adjoiner's  land.     They 

^Uiasemore  v.  Richards,  5  Hurl.  &  N.  990,  7  H.  L.  Cas.  349;  Angell,  Water- 
courses, §  114;  Lybe's  App.  106  Pa.  626;  Pennsylvania  Coal  Co.  v.  Sander- 
son, 113  Pa.  126,  4  Cent.  Rep.  475;  Hetrich  v.  Deachler,  6  Pa.  32;  Miller 
V.  Miller,  9  Pa.  74;  Chesley  v.  King,  74  Me.  164;  Phillips  v.  Sherman,  64 
Me.  174;  Stevens  v.  Kelly,  78  Me.  445,  3  New  Eng.  Rep.  230. 

*Sce  also  Delhi  v.  Youmans,  45  N.  Y.  362.  As  to  the  rights  of  parties  when 
the  water  is  collected  in  a  pond,  ?ee  Proprietors  of  Mills  v.  Braintree 
Water  Supply  Co.  149  Mass.  478,  4  L.  R.  A.  272. 


284  IMPOSED    DUTIES,    PEKsUNAL.  [Part    II. 

are  as  applicable  to  unknown  sub-surface  streams  as  they  are  to 
filtrations  and  percolations  through  small  interstices." 

And  in  Ujle's  App.,  106  Pa.  634,  it  is  said  :  "  The  rule  is  that 
wherever  the  stream  is  so  hidden  in  the  earth  that  its  course  is  not 
discoverable  from  the  surface,  there  can  be  no  such  thing  as  a  pre- 
scription in  favor  of  an  adjacent  proprietor  to  have  an  unintei-- 
rupted  flow  of  such  stream  through  the  land  of  his  neighbor."^ 
But  see  DeUd  v.  Youmans,  45  N.  Y.  362,  as  qualifying  this  when 
the  result  interrupts  a  spring  which  has  added  its  supply  to  a  run- 
nins  stream.  Where  the  subterranean  water  is  not  hidden,  but 
has  a  defined  flow  which  is  known  or  ascertainable,  rights  in  it 
will  be  treated  on  the  same  basis  as  rights  in  a  surface  stream. 

It  is  therefore  clear  from  the  principles  and  the  reasoning  of  all 
the  cases  that  the  distinction  between  rights  in  surface  and  in  sub- 
terranean waters  is  not  founded  on  the  fact  of  their  location  above 
or  below  ground,  but  on  the  fact  of  knowledge,  actual  or  reason- 
ably acquirable,  of  their  existence,  location,  course  and  effect. 
This  is  the  same  principle  which  is  recognized  in  all  well- 
considered  cases  as  controlling  the  use  of  water. 

It  was  decided  in  Stevens  v.  Kelley,  78  Me.  445,  3  Kew  Eng. 
Eep.  230,  that  where  the  owner  of  a  mill-dam  maliciously  and  un- 
necessarily draws  the  water  from  the  pond,  and  thus  destroys  the 
ice  privilege,  he  is  liable  in  damages  to  the  owner  thereof.  In 
that  case  it  was  claimed  by  the  defendants  that,  having  raised  the 
water,  it  was  their  privilege  to  lower  it,  but  the  sufficient  answer 
was  that  while  it  may  be  true  they  were  under  no  obligation  to- 
keep  up  the  dam  any  longer  than  their  interest,  or  whim  even, 
might  dictate,  yet,  as  the  dam  was  not  abandoned,  but  was  kept 
up,  and,  by  an  affirmative  act  on  the  part  of  the  defendants,  the 
water  was  drawn  off  when  it  was  of  no  use  to  them,  but  a  serious 
injury  to  the  plaintiff,  that  this  cannot  be  said  to  be  consistent 
witli  their  qualified  right  to  the  use  of  the  water,  and  the  reason- 
able care  which  they  are  legally  bound  to  exercise  in  that  use.  It 
is  rather  a  wanton  use,  a  disregard  of  the  rights  of  others,  which 
the  law  condemns,  and  which  the  writ  alleges  to  be  malicious,  and 
for  the  purpose  of  injuring  the  plaintiff.  And  reference  is  made 
to  Phillips  v.  Sherman,  64  Me.  174,  in  which  it  is  said;     "A 

J  WMstone  v.  Bowser,  29  Pa.  59. 


Chap.  XIII.]        SUKFACE    AND    SUBTERRANEAN    WATERS.  285 

wanton,  or  vexations,  or  nnnecessary  detention  wonld  render  tlie 
mill  owner  so  detaining  liable  to  damages  to  those  injnred  by  such 
nnlawful  detention."  x\nd  it  i?  held  that  if  the  owner  of  the  dam 
has  no  right  unreasonably  to  detain  the  water,  for  the  same  reason 
he  would  have  no  right  wantonly  to  accelerate  it  to  the  injury  of 
owners  above  or  below,  and  the  case  of  Frye  v.  Moor,  53  Me.  583, 
is  cited,  where  it  was  held  that  where  water  is  accumulated  wrong- 
fully, the  party  so  doing,  in  letting  it  out,  must  do  so  at  his  peril. 
And  it  was  said  that  in  this  case,  so  far  as  appears,  the  defendants 
had  the  right  to  flow  the  water  for  their  mill  only.  It  was  not 
raised  for  that  purpose,  for  the  mill  was  not  used ;  nor  does  it 
appear  for  what  purpose  it  was  raised,  except,  as  alleged  in  the 
writ,  to  injure  the  plaintiff.  Eeference  is  also  made  to  the  case 
of  Chedey  v.  King,  71  Me.  1G4,  in  which  the  court  consider  the 
principle  involved  substantially  like  that  in  the  case  before  them, 
and  it  is  certainly  the  pi'inciple  involved  in  the  present  examina- 
tion. There  the  defendant,  in  digging  a  well  upon  his  own  land, 
destroyed  the  plaintiff's  spring  by  drawing  from  it  the  water  which 
percolated  through  the  earth  and  thus  supplied  the  spring.  In 
that  case  it  was  held,  after  much  consideration  and  a  careful  re- 
view of  the  autliorities,  that  the  defendant,  though  he  was  in  the 
exercise  of  a  right,  and  would  not  be  liable  to  an  action  so  long  as 
he  acted  in  good  faith  and  with  an  honest  purpose,  would  yet  be 
liable  if  he  dug  the  well  for  the  sole  purpose  of  inflicting  damage 
upon  the  party  who  had  rights  in  the  spring.  In  Stevens  v.  Kelly, 
stujjra,  the  case,  it  was  said,  would  seem  to  be  a  stronger  one  for 
the  plaintiff,  as  the  defendants  had  only  a  qualified  interest  in  tlie 
water — a  right  to  use  it  for  a  specified  jDurpose  ou\y — and  in  that 
use  were  bound  to  exercise  due  care  in  resfard  to  the  rights  of  oth- 
ers;  yet,  in  the  act  complained  of,  they  were  not  in  tlie  use  of  the 
water  for  their  own  legal  purposes,  ''nor  were  they  in  the  exercise 
of  due  care,  by  which  an  injury  happened  to  the  plaintiff.'" 

The  principle  of  all  these  cases  is  precisely  the  same  as  that  of 

Wheatley  v.  Baugh,  and  is  of  general  application.     It  is  that  the 

use  which  inflicts  the  damage  must  be  natural,  proper  and  free  from 

negligence,  and  the   damage  unavoidable.     On  the  question  of 

negligence  the  question  of  knowledge  is  always  important  and 

'See  also  Bliss  v.  Greeky,  45  N.  Y.  671. 


286  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

may  be  conclusive.  Hence  tlie  practical  inquiry  is,  first,  whether 
the  damao-e  was  necessary  and  unavoidable  ;  secondly,  If  not, 
w\as  it  sufficiently  obvious  to  have  been  foreseen,  and  also  pre- 
ventable by  reasonable  care  and  expenditure  ? 

In  Pennsylvania  Coal  Co.  v.  Sanderson  the  damage  was  una- 
voidable. In  Wheatley  v.  Baugh  it  was  not  ascertainable  before- 
hand. Hence  the  plaintiff  had  no  cause  of  action  in  either  case. 
Later  cases  following  Wheatley  v.  Baugh  have  held  that  injury  to 
springs,  wells,  etc.,  supplied  by  mere  percolation,  was  not  action- 
able, and  the  reason  has  always  been  the  same,  that  the  damage 
could  not  be  foreseen  or  avoided.  If  the  boundaries  of  knowledge 
have  been  so  enlarged  as  to  make  an  end  of  the  reason,  then  ces- 
sante  ratione,  cessat  ipsa  lex. 

Geology  is  a  progressive,  and  now  in  many  respects  a  practical^ 
science;  and  it  is  said  in  Collins  y.  Chartiers  Valley  Gas  Co.,  131 
Pa.  143,  6  L.  R.  A.  280,  that,  since  the  decisions  in  Acton  v. 
Blundell,  12  Mees.  &  W.  324,  and  Wheatley  v.  Baugh^  25  Pa. 
528,  probably  more  deep  wells  have  been  drilled  in  Western 
Pennsylvania  than  had  previously  been  dug  in  the  entire  earth  in 
all  time,  and,  as  is  well  known,  the  Central  States  are  as  well  deeply 
concerned  in  the  settlement  of  the  question.  And  it  was  also  said  in 
that  case  that  much  w^hich  was  then  held  to  be  necessarily  un- 
known or  merely  speculative,  as  to  the  flow  of  water  under  ground, 
has  been  by  experience  reduced  almost  to  a  certainty.  If  this  is 
the  state  of  knowledge  at  the  present  day, — if  the  existence  of  a 
stratum  of  clear  water  and  its  flow  into  wells  and  springs  of  the 
vicinity,  and  the  existence  of  a  separate  and  deeper  stratum  of 
salt  water  which  is  likely  to  rise  and  mingle  with  the  fresh  when 
penetrated  in  boring  for  oil  or  gas,  are  known,  and  the  means  of 
preventing  the  mixing  are  available  at  reasonable  expense, — then 
clearly  it  would  be  a  violation  of  the  living  spirit  of  the  law  not 
to  recoo-nize  the  change  and  apply  the  settled  and  immutable 
principles  of  the  common  law,  even  where  the  civil  law  in  the 
matter  of  water  rights  prevails,  and  adjust  the  scale  of  justice  to  the 
altered  conditions  of  fact.  Negligence  in  this  sense  is  the  absence 
of  sucli  care  and  regard  for  the  rights  of  others  as  a  prudent  and 
just  man  would  and  should  have  in  the  same  situation.  If  the 
plaintiff  in  any  given  case  can  show  that  the  injury  was  plainly  to 


Cliap.  XIIL]        SURFACE    AND   SUBTERRANEAN   WATERS.  287 

be  anticipated,  and  easily  preventable  with  reasonable  care  and 
expense,  he  brings  himself  within  the  exception  of  all  the  cases 
placed  npon  these  principles.  Accordingly,  it  was  held  in  Collins 
V.  Chartiers  Yalleij  Gas  Co.,  131  Pa.  143,  6  L.  R  A.  280,  that 
damages  for  injuries  to  wells  of  clear  fresh  water  by  the  rising 
and  mixing  therewith  of  salt  water  from  a  lower  stratum,  caused 
by  boring  for  gas  or  oil,  may  be  recovered  from  the  party  boring, 
if  he  knew  or  ought  to  have  known  of  the  existence  of  the  stratum 
of  fresh  water,  and  of  the  deeper  stratum  of  salt  water,  as  well  as 
of  the  fact  that  drilling  through  them  would  almost  inevitably 
mix  the  two,  and  could,  at  a  reasonable  expense,  have  shut  off  the 
salt  water  from  the  fresh  and  thus  prevented  the  injury. 

There  is  a  distinction  between  the  diversion  of  streams  and  the 
corrupting  of  them,  whether  surface  or  subterranean,  and  whether 
known  and  detined,  or  unknown  and  subsisting  as  percolations, 
and  greater  care  must  be  exercised  to  prevent  the  corruption  of 
waters  than  the  diverting  of  them.'  There  is  a  well-known  line 
of  cases  which  decide  that  a  stream  of  water  may  not  be  fouled, 
by  the  introduction  into  it  of  any  foreign  substance,  to  the  dam- 
age and  injury  of  the  lower  riparian  owners.^  Negligence  in  per- 
mitting the  escape  of  any  health-destroying  filth  upon  the  prem- 
ises of  a  neighbor  will  afford  a  ground,  either  for  injunction,  or 
an  action  for  damages,'  although  the  noxious  matter  is  carried  on 
the  neighbor'  sproperty  by  the  ordinary  operation  of  natural  laws.* 
Whatever  renders  the  water  less  fit  for  the  ordinary  uses  of  life, 

^HodqTcinsnn  v.  Ennor,  4  Best  &  S.  229;  Frazier  v.  Broxcn,  12  Ohio  St.  294, 
3i2,  3  Am.  L.  Reg.  N.  S.  240,  note,  as  stated  in  Angell  on  Watercourses' 
114  J;  Tenant  v.  Goldwin,  2  Ld.  Kaym.  1089, 1  Salk.  21,  360,  6 Mod  31 1' 
Holt,  500. 

^Creighton  v.  Kaweah  Canal  (&  I.  Co.  67  Cal.  221;  Vandenburgh  v.  Van  Ber- 
gen, 13  Johns.  212;  Buddington  v.  Bradley.  10  Conn.  213;  Einbrey  v. 
Owen,  6  Exch.  370;  Jlonsee  v.  Hammond,  39  Barb.  89;  Sackrider  v.  Beer.'i 
10  Johns.  241;  WIuttierY.  Cocheco  Mfg.  Co.  9  N.  H.  454;  Blanchard  v! 
Baker,  8  Greenl.  253;  Howell  y.  McCoy,  3  Rawle.  256;  Barclay  v.  C'm- 
monicealth,  25  Pa.  503;  Corning  v.  Troy  Iron  &  N.  Factory,  34  Barb.  A'S'y, 
McCalliim  v.  Germantown  Water  Co.  54  Pa.  40;  Mason  v.  Hill,  5  Barn.  ^ 
Ad.  1;  Puley  v.  Clark,  32 Barb.  2G8;  Davis  v.  Fuller,  12  Vt.  178;  Woodv. 
Sutcliffe,  16  Jur.  75;  Wood  v.  Waud,  3  Exch.  748;  Tipping  v.  St.  Helen'  h 
Smelting  Co.  4  Best  &  S.  608,  11  H.  L.  Cas.  642;  Chaseuwre  v.  RichardK,  2 
Hurl.  &N.  168,  7  H.  L.  Cas.  349;  Hendricks  v.  Johnson,  6  Port.  (Ala.) 
472;  Webster  v.  Fleming,  2  Humph.  518. 

'Baugh's  Appeal,  102  Pa.  42. 

*Brown  v.  Illius,  27  Conn.  84;  Vedderv.  Vedder,  1  Denio,  257;  Seaman  v 
Lee,  lOHuu,  007. 


288  IMPOSED   DUTIES,  PERSONAL.  [Part   II. 

or  makes  it  distasteful  or  unwholesome,  or  abhorrent  to  the  senses 
or  unfit  for  manufacturing  purposes,  will  be  held  as  coming  with- 
in the  offense  of  corrupting  the  water.'  But  the  right  to  con- 
taminate the  water  for  any  useful  purpose  or  as  an  outlet  for  sew- 
ers may  be  acquired  by  easement,"  or  by  deed  or  license.' 

The  rule  may  be  stated  broadly,  tliat  it  is  a  neglect  of  an  im- 
posed duty  to  permit  impure,  filthy  or  corruj^ted  water  to  perco- 
late or  filter  through  the  soil  into  the  land  of  a  contiguous  pro- 
prietor to  the  injury  of  his  well,  spring,  grounds  or  buildings,  or 
for  such  fluid  to  thus  pass  from  his  land  as  surface  water,  when 
he  is  responsible  for  its  condition.  If  this  happen  continuously, 
with  his  knowledge  of  the  fact,  it  will  furnish  ground  for  an  ac- 
tion for  the  injury  and  often  for  an  injunction.''  In  the  absence 
of  knowledge  it  would  seem  the  duty  of  a  man  to  keep  the  obnox- 
ious matter  on  his  own  premises,  as  he  is  required  to  keep  any 
other  dangerous  or  disagreeable  substance,  or  prevent  the  escape 
of  noxious  odors  to  the  injury  of  his  neighbors.*  It  is  true  that 
the  upper  riparian  owner  has  the  right  to  the  use  of  the  stream  on 
his  land  for  any  legal  purpose,  but  this  right  of  use  is  coupled  with 
the  condition  that  he  return  it  to  its  channel  uncorrupted  and 
without  any  essential  diminution,  and  in  all  such  cases  the  size  and 
capacity  of  the  stream  are  to  be  considered.'     Under  a  Code  au- 

^Sanderson  v.  Pennsyhania  Coal  Co.  86  Pa.  401,27  Am.  Rep.  711;  Robinson 
V.  Black  Diamond  Coal  Co.  57Cal.  412,  40  Am.  Rep.  118;  Red  River  Mills 
V.  Wricjht,  30  Minn.  249,  44  Am.  Rep.  194;  Ooldsmid  v.  Tunbridge  Wells 
Imp.  Gomrs.  L.  R.  1  Ch.  App.  349;  Woodyear  v.  Scliaefer,  57  Md.  1,  40 
Am.  Rep.  419;  Butterfoss  v.  State,  40  N.  J.  Eq.  325;  State  v.  Buckman, 
8N.  H.  203,  29  Am.  Dec.  646;  Hamilton  v.  Columbus,  52  Ga.  435;  Car- 
hart  V.  Auburn  Gas  Light  Co.  22  Barb.  297;  Norton  v.  Scholefield,  9  Maes. 
«fe  W.  665. 

^Hayes  v.  Waldron,  44  N.  H.  585;  Merrifield  v.  Lombard,  13  Allen,  16. 

^Carlyon  v.  Lovering,  1  Hurl.  &  N.  784;  Sealing  v.  Saratoga  Springs,  39 
Hun,  307. 

*Stanchfield  v.  Newton,  142  Mass.  110,  2  New  Eng.  Rep.  526;  Wilson  v.  New 
Bedford,  108  Mass.  261;  Ball  v.  Nye,  99  Mass.  582,  584;  Goodrich  v.  Bur- 
bank,  97  Mass.  22;  Gould,  Waters,  §  288;  Hodgkinson  v.  Ennor,  4  Best  & 
S.  229;  RaugKs  Appeal,  102  Pa.  42;  Frazier  v.  Brown,  12  Ohio  St.  312; 
Embreyv.  Owen,  6  Exch.  353;  Smith  v.  Kenrick,  7  C.  B.  515;  Wood  v. 
Waud  3  Exch.  748;  BairdY.  Williamson,  15  C.  B.  N.  S.  376;  Tenants 
Goldwin,  6  Mod.  311,  2  Ld.  Raym.  1089;  Washb.  Easem.  (4th  ed.)  489. 

f'Kinnaird  v.  Standard  Oil  Co.  (Ky.  Jan.  25,  1890)  7  L.  R.  A.  451 ;  Gould, 
Waters,  §288;  PtfWstoMft  G'as  Co.  v.  Murphy,  39  Pa.  257;  Decatur  Gas 
Light  &  C.  Co.  V.  Howell,  92111. 19;  Wahle  v.  Reinbach,  76  111.  322;  Jacobs 
V.  Worrell,  15  Leg.  Int.  139;  Tenant  v.  Goldwin,  6  Mod.  311,  2  Ld. 
Raym.  1089. 

^Wheatley  v.  C/imman,  24  Pa.  298;  PennsyZoanm  ij.  Co.  v.  Miller,  112  Pa. 
34,  3  Cent.  Rep.  127. 


Chap.  XIII.]  DUTY    OF   MUNICIPAL   COKPORATIONS.  2S9 

thorizing  use  for  mines,  an  upper  owner  has  no  right  to  polhite  or 
adulterate  the  water  so  as  to  render  it  unfit  for  use  by  a  lower 
owner ;  and  the  fact  that  tlie  water  of  a  certain  stream  is  more 
useful  to  certain  upper  owners  for  the  purpose  of  washing  ore 
than  it  is  to  a  lower  owner  for  agricultural  or  domestic  purposes  is 
immaterial.'  Under  a  statute  providing  that  no  person  should  be 
allowed  to  flood  the  property  of  another  with  water,  or  to  wash 
down  the  tailings  of  his  sluice  upon  the  propert}'^  of  another,  the 
practice  of  miners  to  dump  their  tailings  upon  their  own  ground 
and  let  them  care  for  themselves  cannot  be  justitied,  as  to  any 
person  injured  thereby,  by  any  custom,  without  evidence  to  show 
that  the  injured  person  consented  to  the  commission  of  such  act.'^ 
In  Carliart  Y.Auhurn  Gas  Light  Co.,  22  Barb.  297,  the  gas 
compau}'  was  held  liable  for  the  corruption  of  the  water  of  a  river 
by  percolation  through  the  soil  of  noxious  substances,  whereby  a 
lot  of  the  proprietor  lying  along  the  river  was  injured ;  but  in 
Brown  V.  Illius,  27  Conn.  S4-,  the  court  held  that,  unless  the  one 
who  placed  the  substance  upon  his  soil  acted  from  malice,  he 
would  not  be  liable,  where  his  neighbor  was  injured  through  poi- 
sonous substances  affecting  the  sul)terraneous  currents;  M'hereas, 
if  they  passed  along  the  surface  of  the  ground  by  surface  flow,  or 
were  diffused  under  the  surface  naturally,  it  would  render  him 
liable. 

Section  ^G.—Duty  of  Municipal  Corporations,  as 
Owners  of  Streets,  Alleys  and  Parks,  not  to 
Cast  the  Filth  of  Their  Sewers  upon  Other 
Lands. 

A  municipal  corporation  has  the  same  duty  imposed  upon  it,  as 
owner  of  the  streets,  alleys,  parks,  sewers  and  public  buildings 
in  the  city,  charged  with  the  duty  of  making  and  maintaining 
them  in  a  reasonably  convenient  condition  for  use,  and  for  the 
safety,  not  only  of  travelers,  but  of  adjoining  proprietors,  that 
rests  upon  individual  land  owners,  or  those  occupying  land,  with 
respect  to  the  public  generally,  and  adjoining  proprietors  to  whom 

^Satterfield  v.  Rowan,  83  Ga.  187. 
^Fuller  V.  Swan  River  Placer  Min.  Co.  13  Colo.  12. 
19 


290  IMPOSED  DUTIES,  PERSONAL.  [Fart  IL 

they  owe  a  special  duty,  to  avoid  permitting  dangerous,  poison- 
ous or  corrupt  matter,  created  or  collected  by  tliera  upon  their 
own  premises,  to  pass  or  be  cast  upon  the  premises  of  another.' 
If  a  municipal  corporation,  by  its  system  of  constructing  sewers,^ 
renders  an  outlet  necessary,  it  must  provide  one.''  It  incurs  a 
duty,  having  created  the  necessity  for  an  outlet  and  having  the 
power  to  secure  one,  of  adopting  and  executing  such  measures  as 
will  prevent  a  nuisance  and  obviate  damage.^ 

In  Chapman  v.  Rochester,  110  N.  Y.  273,  1  L.  R.  A.  296,  the 
plaintiff  was  the  owner  and  occupant  of  certain  premises,  contain- 
ing more  than  four  acres  of  land,  in  the  Town  of  Brighton,  adjoining 
the  City  of  Rochester,  and  watered  by  a  stream  known  as  "Thomas 
Creek,"  which,  rising  in  that  city  and  fed  by  springs  of  pure 
water,  ran  northwardly  and  across  the  plaintiff's  premises  into 
Irondequoit  Bay.  He  collected  its  water  into  an  artificial  basin, 
making  it  serve  as  well  for  domestic  uses  as  the  propagation  of  fislij 
and  from  it  in  the  winter  season  he  also  procured  a  supply  of  ice. 
The  defendant  thereafter  constructed  sewers,  and  through  them 
discharged,  not  only  surface  water,  but  the  "sewage  from  houses 
and  the  contents  of  a  large  number  of  water-closets,"  into  Thomas 
Creek  above  the  plaintiff's  land.  Math  such  effect  as  to  render  its 
water  unfit  for  use  and  cover  its  banks  with  filthy  and  unwhole- 
some sediment.  These  and  other  facts,  it  was  held,  warranted  the 
conclusion  of  the  trial  court  that  the  act  of  the  defendant  in  thus 
emptying  its  sewers  constituted  an  offensive  and  dangerous  nui- 
sance, and  that,  as  the  plaintiff  was  found  to  have  sustained  a  special 
injury  to  his  health  and  property  from  the  same  cause,  he  was  en- 
titled, not  only  to  compensation  for  damages  thereby  occasioned^ 

^Parks  V.  Newburyport,  10  Gray,  28;  Flngg  v.  Wi>rceder,  13  Gray,  603;  Me- 
chanicsburg  v.  Meredith,  54  III.  84;  People  v.  Brooklyn,  65  N.  Y.  349;  Fre- 
mont, E.  &  M.  V.  R.  Co.  V.  Marley,  25  Neb.  138;  Sullivan  v.  Phillips,  110 
Ind.  320;  BychUcki  v.  St.  Louis,  98  Mo.  497.  4  L.  R.  A.  594;  CraUrce  v. 
Baker,  75  Ala.  91;  Olson  v.  St.  Paul,  M.  &  M.  B.  Co.  38  Minn.  419;  Oil- 
lison  V.  CharUston,  16  W.  Va.  283,  37  Am.  Rep.  763;  Field  v.  West  Or- 
ange, 39  N.  J.  Eq.  60;  Nevins  v.  Peoria,  41  111.  502;  Bastable  v.  Syracuse, 
72  N.  Y.  64;  Hitchins  v.  Frostburg,  68  Md.  100,  6  Am.  St.  Rep.  422. 

^Ellis  V.  Iowa  City,  29  Iowa,  229;  McGregor  v.  Boyle,  34  Iowa,  268;  Evamville 
V.  Decker,  ii4:  Ind.  325;  Crawfordsville  v.  Bond,  96  Ind.  236;  Van  Pelt  v. 
Davenport,  42  Iowa,  308;  Aurora  v.  Love,  93  111.  521;  Indianapolis  v. 
Lawyer,  38  Ind.  348;  Ft.  Wayne  v.  Coombs,  107  Ind.  75,  5  West.  Rep. 
229;  Byrnes  v.  Cohoes,  67  N.  Y.  204. 

^Phinizy  v.  Augusta,  47  Ga.  263:  Byrnes  v.  Cohoes,  67  N.  Y.  204;  Seifert  v. 
Brooklyn,  101  N.  Y.  136,  2  Cent.  Rep.  135. 


Chap,  XIII.]  DUTY    OF   MUNICIPAL   CORPORATIONS.  291 

but  also  to  such  a  judgment  as  would  prevent  the  furtlier  perpetra- 
tion of  the  wrong  complained  of.'  In  tliat  case  tlie  tilth  of  the 
city  did  not  flow  naturally  to  the  lands  of  tlie  plaintiff,  as  surface 
water  finds  its  level,  but  was  carried  thither  by  artificial  arrange- 
ments prepared  by  the  city,  and  for  this  it  was  responsible,  and  it  is 
said  that  the  case  comes  within  the  general  rule  which  gives  to  a 
.  person  injured  by  the  pollution  of  air  or  water,  to  tlie  use  of  which 
in  its  natural  condition  he  is  entitled,  an  action  against  the  party, 
whether  it  be  a  natural  person  or  a  corporation,  who  causes  that 
pollution.  For  it  is  settled  law  that  every  owner  of  land  through 
which  a  stream  of  water  flows  or  on  which  a  spring,  pond  or  lake 
is  located,  is  entitled  to  the  use  and  enjoyment  of  the  water,  and 
to  have  the  same  flow  in  its  accustomed  and  natural  course,  or  re- 
main in  its  natural  condition,  without  obstruction,  diversion  or 
corruption;  and  this  right  extends  to  the  quality  as  well  as  the 
quantity  of  the  water."  The  pollution  of  water  or  the  mainte- 
nance of  dams,  drains  or  ditches,  in  such  a  way  as  to  emit  disa- 
greeable or  unwholesome  odors,  is  an  actionable  nuisance,  for 
which  a  remedy  exists  in  favor  of  any  person  who  is  injuriously 
affected  thereby.'  The  corruption  or  pollution  of  water  by  the 
discharge  into  it  of  sewage,  or  by  the  use  of  it  for  mechanical  or 
manufacturing  purposes,  is  a  nuisance.*  Unquestionably  the  flood- 
ing of  land  with  sewage,  so  as  to  create  a  nuisance  thereon  and 
impair  its  usefulness,  is  a  taking  of  it  for  public  use,  without  com- 
pensation.*    A  city  has  no  right  to  discharge  the  public  sewers 

'  See  Goldsmid  v.  Turibridge  Wells  Imp.  Comrs.  L.  R.  1  Eq.  161   L   R  1  Ch 
App.  349.  ^         .     •     • 

2 Wood.  Nuis.  §  677;  Oladfelter  v.  Walker,  AOMdA;  Wood  v.  Suicliffe  2  Sim 
N.  S.  163,  8  Eiig.  L.  &  Eq.  217;  Stockport  Waterworks  Co.   v.  Potter  7 
Hurl.    &   N.     159;     Wood^ear  v.    Schacfer,   57    Md.    1,    40   Am.    Rep 
419;    Eolsman   v.  Boiling  Spring  Bleach.  Co.   14  N.  J.   Eq.   335;    Ridi 
mond  Mfg.   Co.  v.  Atlantic  Be  Laine  Co.   10  R.    I.   116,  14  Am.  Rep 


75 
T.  JSunnemacher.  36  Wis.  56:  McQ 
ness  V.  Adriatic  Mills,  116  Mass.  177. 

^Francis  v.  Schoellkopf,  53  N.  Y.  154;  Wesson  v.  Was?tburn  Iron  Co.  13  Allen,  95. 

*Qolds-nud  V.  Tunbridge  Wells  Imp.  Comrs.  L.  R.  1  Cb.  App.  349;  Smit/i,  v.  Mc- 
Conathy.  11  Mo.  517;  Lewis  v.  Stein,  16  Ala.  214;  liowell  \.  M'Cov  3 
Rawle,  256.  "' 


20  L.  ed.  557;  O'Brien  v.  St.  Paul,  1«  Minn.  176;  Columbus  v.  Hudraulic 
Woolen  Mills  Co.  33  Ind.  435. 


292  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

into  a  private  watercourse.'  And  it  is  immaterial,  as  affecting 
the  liability  of  the  city,  whether  the  contents  of  the  sewer  are  dis- 
charged directly  on  the  property  of  an  individual  or  at  sneh  a 
point  that  the  sewage  and  other  refuse  taken  along  with  it  must 
necessarily  be  carried  there  by  a  conduit  or  gravitation.^  If  a 
culvert  is  dug  across  a  street,  whereby  the  surface  water  from 
the  lands  of  adjacant  proprietors  is  gathered,  charged  with  the 
filth  of  sinks,  and  thrown  upon  the  land  of  another,  producing 
noxious  scents  and  sickness,  and  rendering  the  enjoyment  of  the 
property  impossible,  the  city  will  be  liable  for  damages.*  A  munic- 
ipal corporation  has  no  right  to  collect  the  sewage  of  a  large  por- 
tion of  a  city  and  by  artificial  channels  cast  it  upon  the  lands  of 
another;  and  for  such  acts  it  is  liable  in  damages  whether  or  not 
they  be  done  in  conformity  to  a  plan  adopted  by  its  officers,  judi- 
cially or  otherwise.*  A  sewer  or  culvert  debouching  upon  private 
estates  is  a  nuisance,^  and  a  municipal  corporation  cannot  with 
impunity  create  a  public  or  private  nuisance.'  So,  town  commis- 
sioners of  an  incorporated  town  have  no  power  to  legalize  a  nui- 
sance unless  specially  authorized  so  to  do  by  Act  of  the  Legisla- 

^ Locks  &  Canals  v.  Lowell,  7  Gray,  233;  Columbus  v.  Hydraulic  Woolen  Mills 
Co.  33  Ind.  485;  O'Brien  v.  St..  Paul,  18  Minn.  17G;  Cone  v.  Hartford,  28 
Conn.  363;  Atty-Oen.  v.  Birmingham,  4  Kay  &  ,J.  528;  Be  Rhinelander,  68 
N.  Y.  105;  Peoples.  Haines,  49  N.  Y.  587;  Merrifield  v.  Worcester,  110 
Mass.  216. 

^Sleight  V.  Kingston,  11  Hun,  594;  Moran  v.  McLearns,  63  Barb.  185;  Wood- 
ward V.  Worcester,  121  Mass.  245;  Jacksonville  v.  Ijimhert,  62  111.  519; 
Aurora  v.  Beed,  57  111.  29;  Inman  v.  Tripp,  11  R.  I.  530;  Clark  v.  Peck- 
ham,  9  R.  I.  455;  Pettigrew  v.  Evansville,  25  Wis.  236;  Hendershott  v.  Ot- 
tumwa,  46  Iowa,  658. 

*Smith  V.  Atlanta,  75  Ga.  110. 

*0'Brien  v.  St.  Paul,  18  Minn.  176;  Monan  v.  Albany,  79  N.  Y.  475,  476; 
Bi/r)ies  V.  Cohoes,  67  N.  Y.  204;  Puchardson  v.  Boston,  60  U.  S.  19  How. 
263,  15  L.  ed.  639;  Sleight  v.  Kingston,  11  Hun,  594:  Barton  v.  Syracuse, 
36  ir.  Y.  54;  Bastable  v.  Syracuse,  8  Hun,  587;  Beach  v.  Elmira,  23  Hun, 
158;  Rochester  White  Lead  Co.  y.  Rochester,  3  N.  Y.  466;  Perry  y.  Worces- 
ter 6  Gray,  544;  Ashley  v.  Port  Huron,  35  Mich.  296;  Story  v.  New  York 
Elevated  R.  Co.  90  N.  Y,  122;  Seifert  v.  Brooklyn,  101  N.  Y.  136,  2  Cent. 
Rep.  135;  Lehn  v.  San  Francisco,  66  Cal.  76;  Taylor  v.  Austin,  32  Minn. 
247. 

iJSfoonan  v.  Albany,  79  N.  Y.  470;  Byrnes  v.  Cohoes,  67  N.  Y.  204;  Sleight  v. 
Kingston  11  Hun,  594;  Beach  v.  Elmira,  22  Hun,  158;  Seifert  y.  Brook- 
lyn, 101  N.  Y.  136,  2  Cent.  Rep.  135. 

*Nichols  V.  Boston,  98  Mass.  39;  Haskell  v.  New  Bedford,  108  Mass.  208; 
Mootry  v  Banbury,  45  Conn.  550;  Nevins  v.  Peoria,  41  111.  504;  Jackson- 
ville  V.  Lambert.  62  111.  519;  Babcock  v.  Buffalo,  1  Sbeld.  117, 56  N.  Y.  268; 
Francis  v.  Slwellkopf,  53  N.  Y.  152;  Jutte  v.  Hughes,  67  N.  Y.  268;  Frank- 
lin Wharf  Co.  v.  Portland,  67  Me.  46;  Batkurst  v.  Macplierson,  L.  R.  4  App. 
Cas.  256. 


Chap.   XIII.]        INJUNCTION    TO    PREVENT    POLLUTION.  203 

ture.'  A  municipality  changing  the  grade  in  rebuilding  the  out- 
let of  a  street  sewer,  and  negligently  raising  it  above  tliat  of  the 
sewer,  thereby  causing  the  discharge  of  sewage  upon  private 
premises,  is  liable,^  and  where  the  city  empties  one  of  its  sewers 
on  the  plaintiff's  lands,  no  matter  under  what  mistake,  pretense 
or  asserted  authority,  it  is  a  direct  violation  of  his  rights,  a  con- 
tinual trespass  on  his  property,  and  the  city  is  liable,  just  as  any 
private  person  would  be.^  In  Canada,  where  a  drain  was  so  un- 
skillfully  constructed  by  the  corporation  contractors  as  not  to  car- 
ry oli  water,  but  to  carr}-  filth  from  the  main  sewer  into  plaintiff's 
cellar,  which  for  months  he  had  endured,  it  was  held  that  he  was 
entitled  to  sue  the  corporation  for  the  recovery  of  substantial 
damages,  though  no  by-law  for  the  making  of  the  drain  was 
proved.*  But  M'here  nothing  but  express  statutory  liability  is 
recognized,  as  in  Massachusetts,  there  is  considered  to  be  no  lia- 
bility on  the  part  of  a  city  for  failing  to  keep  a  public  cesspool 
and  sewer  in  repair,  in  consequence  of  which  waste  water  accumu- 
lates and  flows  into  neighboring  cellars  not  connected  with,  the 
sewer." 

Section  ^"J.— Injunction  to  Prevent  Pollution  of 

Waters. 

"When  equity  is  asked  to  enjoin  the  pollution  of  a  stream,  or  to 
give  relief  in  like  cases,  it  must  have  regard  not  only  to  the  dry, 
strict  rights  of  the  parties,  but  also  to  the  surrounding  circum- 
stances, and  to  the  relative  injury  which  may  be  sustained  by  the 
parties  in  granting  or  refusing  relief."  Thus  an  immaterial  in- 
jury to  a  lower  riparian  owner  by  the  pollution  of  water  of  a 
stream  is  no  canse  for  injunction  against  the  washing  of  ore  by  an 
upper  owner  causing  such  pollution.^     A  man  who  has  bought 

estate  V.  Luce  (Del.  Oct.  Term,  1885)  6  Cent.  Rep.  863. 

^Befer  v.  Detroit  (Mich.  Oct.  20,  1887)  11  West.  Rep.  530. 

^Beachv.  Elmim,  22  Hun,  158;  Bradt  v.  Albany,  5  Hun,  591;  B>/rne.<i  v.  Co- 
hoes,  5  Hun,  602,  affirmed,  67  iST.  Y.  204,  207;  Seiftvt  v.  Brooklyn,  101  N. 
Y.  136,  2  Cent.  Rep.  135. 

^Reeves  v.  Toronto,  21  U.  C.  Q.  B.  160.  But  see  Gilman  v.  Laconia,  55  N.  H. 
130,  20  Am.  Rep.  175. 

^Barry  v.Lotcell,  8  Allen,  127;  2  Dillon,  Mun.  Corp.  936. 

6  ''Clifton  Iron  Co.  v.  Bye,  87  Ala.  468;  Penmylmnia  Coal  Co.  v.  Sanderson 
113  Pa.  126,  4  Cent,  Rep.  475. 


294  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

land  through  which  runs  a  small  stream,  knowing  that  tanneries, 
which  constitute  the  principal  business  of  the  village  where  it  is 
situated,  have  long  been  established  on  its  banks,  from  which  cer- 
tain noxious  substances  have  been  cast  into  the  stream,  cannot 
obtain  an  injunction  against  such  pollution  of  the  water, 
without  showing  that  he  is  thereby  deprived  of  its  use,  or  that  it 
is  thereby  made  dangerous  to  health  by  the  offensive  smell  ema- 
nating therefrom.  He  cannot  complain  on  the  ground  that  it  is 
thereby  rendered  unfit  for  culinary  purposes,  where  it  has  never 
been  so  used,  and  would  be  unfit  therefor  if  the  tanneries  were 
removed;  or  on  the  ground  that  it  destroys  the  use  of  the  stream 
for  watering  cattle,  when  he  has  no  cattle  to  water,  although  there 
are  owners  on  the  stream  who  do  use  the  stream  for  waterinof  cat- 
tie.*  The  lower  owner  who  allows  an  upper  mine  owner  to  pol- 
lute the  stream  by  the  operation  of  a  washer  for  three  years  be- 
fore he  attempts  to  prevent  him,  and  has  known  of  the  investment 
of  capital  in  such  way,  is  too  late  to  enjoin  the  upper  owner  from 
so  doing;  he  must  bring  his  suit  at  law  for  damages,  if  entitled  to 
any."  In  Satterfield  v.  Rowan,  83  Ga.  187,  it  was  held  that  where 
the  pollution  of  a  stream  by  an  upper  owner  is  continuous,  the  rule 
that  one  who  takes  no  steps  to  avoid  the  consequences  of  another's 
negligence  cannot  recover  damages  therefor  has  no  application,  as 
such  pollution  is  not  a  case  of  mere  negligence,  but  a  continued 
tortious  act. 

Section  28. — Right  of  Land  Owner  to  Control  Mere 
Surface  Waters  or  Superficially  Percolating 
Waters. 

The  general  common-law  rule  is  that  the  right  of  an  owner  of 
land  to  occupy  and  improve  it  in  such  manner  and  for  such  pur- 
poses as  he  may  see  fit,  either  by  changing  the  surface  or  tlie  erec- 
tion of  buildings  or  other  structures  thereon,  is  not  restricted  or 
modified  by  the  fact  that  his  own  land  is  so  situated, with  reference 
to  that  of  adjoining  owners,  that  an  alteration  in  the  mode  of  its 
improvement  or  occupation  in  any  portion  of  it  will  cause  water, 

^Claude  v.  Weir  (Q.  B.)  4  Montreal  L.  Rep.  197. 

^Clifton  Iron  Go.  v.  Dye,  87  Ala.  468;  Pennsylvania  Coal  Co.    v.  Sanderson, 
113  Pa.  136,  4  Cent.  Rep.  475. 


Chap.  Xlll.]      RIGHT   OF    LAND   OWNER  TO  CONTROL  WATERS.         205 

which  may  accumulate  thereon  by  raius  and  snows  falhng  on  its 
surface  or  flowing  on  to  it  over  the  surface  of  adjacent  lots,  either 
to  stand  in  unusual  quantities  on  other  adjacent  lands  or  pass  into 
and  over  the  same  in  greater  quantities  or  in  other  directions  than 
they  were  accustomed  to  flow.' 

"Surface  water"  is  defined  as  that  which  is  difliused  over  the 
surface  of  the  ground,  derived  from  falling  rains  and  melting 
snows,  and  continues  to  be  such  until  it  reaches  some  well-defined 
channel  in  which  it  is  accustomed  to  and  does  flow  with  other 
waters,  whether  derived  from  surface  or  springs.' 

By  the  civil  law,  the  lower  of  two  adjacent  estates  owes  a  serv- 
itude to  the  upper  to  receive  all  the  natural  drainage ;  and  the 
lower  owner  cannot  reject,  nor  can  the  upper  withhold,  the  supply, 
although  either,  for  the  sake  of  improving  his  land,  according  to 
the  ordinary  modes  of  good  husbandry,  may  somewhat  interfere 
with  the  natural  flow  of  the  water.* 

The  owner  of  higher  land  has  the  right  to  have  surface  water 
pass  off  through  natural  drains  through  servient  lands.*     But  he 

^Gannon  v.  Hargadon,  10  Allen,   106,   109;  Keith  v.  Brockton,  186  Mass. 

119;  Jordan  v.  St.  Paul,   M.   &  M.  R.  Co.  (Minn.   Dec.  9.  1889)  6    L. 

R.   A.  573;   Buffum   v.   Harris,  5  R.   I.    243;    Parks   v.   Neiobuniport, 

10  Gray,  28;   Bm-kleij  v.  Wilcox,  86  N.  Y.  140;  Bowlsby  v.  Speer,  31  N. 

J.  L.  351;  Ho}ft  v.  Hudson,  27  Wis.  656;  Swett  v.  Gatts,  50  N.   H.  439; 

Robinson  v.    Shanks,  118  lad.    125;  Ratlike  v.    Gardner,  134  Mass.   14; 

Cairo  &  V.   R.  Co.  v.  Stevens,   73  Ind.  279;  Atchison,  T.  &  8.  F.  R.  Co. 

V.    Hammer,  22  Kan.   763;  Gibbs    v.    Williams,  25  Kan.  214;   Morrison 

V.  Bmksport  &  B.  R.  Go.  67  Me.  353;  Murphy  v.  Kelley,  68  Me.  521; 

Drake   v.    Chicago,   R.  I.   &  P.  R.   Co.  70  Iowa,    59,  per  Seevers,  J.; 

Abbott  V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  83  Mo.  271;  Livingston  v. 

McDonald,  21  Iowa,  160;  Martin  v.  Benoist,  20  Mo.  App.  263,  3  West. 

Rep.  541. 
^Crawford  v.  Rambo,  44  Ohio  St.  279,  4  West.  Rep.  446. 
^Beard  v.  Marpliy,   37    Vt.    104;    Martin  v.  Jett,   12  La.    501;    Lattimore 

V.  Davis,  14  La.  161;  Hays  v.   Hays,  19  La.  351;  Adams  v.    Harrison, 

4  La.  Ann.   165;  Delahoussaye  v.   Judice,  13  La.  Ann.  587;   Hooper  v. 

Wilkinson,   15   La.   Ann.    497;    Barrow  v.    Laundry,   Id.   681;    Minor 

V.    Wright,  16  La.    Ann.    151;    Gillis   v.  Nelson,    Id.  275;   Bowman    v. 

New  Orleans,  27  La.  Ann.  502;  Penn.iylvania  Coal  Co.  v.  Sanderson,  113 

126,  4  Cent.  Rep.  475;  Lord  v.  Carbon  Iron  Mfg.  Go.  43  N.  J.  Eq.  157,  4 

Cent.    Uep.  853;  Kauffman   v.  Griesemer,  26  Pa.    415,   note;  Miller  v. 

Laiibach,  47   Pa.  147;  Anderson  v.  Henderson,  124111.  164,  14  West.  Rep. 

109;  Boynton  v.  Longley,  19  Nev.  69;  Hays  v.  Hinkleman,  68  Pa.  324; 

Bentz  V.  Armstrong,  8  Watts  &  S.  40;  Butler  v.  Peck,  16  Ohio  St.  334- 

Tootle  V.  Clifton,  23  Ohio  St.  247;Gillham  v.  Madison  Co.  R.  Co.  49  111.  484; 
*     Gormley   v.    Sanford,    53    111.     159;    Hicks    v.    SiUiman,     93     111.    255; 

Overton  v.  Sawyer,   1  Jones,  L.   308;  Porter  v.  Durham,  74  N.  C.  767; 

Goldsmith  v.  Elsas,  53  Ga.  186. 
*Anderson  v.  Henderson,  124  111.  164,  14  West.  Rep.  109. 


296  IMPOSED  DUTIES,  PEKSONAL,  [Part  II. 

cannot  remove  natural  barriers  and  let  upon  the  lower  land  water 
that  would  not  naturally  flow  in  that  direction/ 

The  rule  of  the  common  law  is  accepted  in  England,  Massa- 
chusetts, Maine,  New  Hampshire,  Vermont,  New  York,  Khode 
Island,  New  Jersey,  Indiana,  Iowa,  Kansas,  Wisconsin,  Missouri 
and  Minnesota,  that  a  land  owner  may  appropriate  to  his  own  use 
or  expel  from  his  land  all  mere  surface  water  or  superficially 
percolating  waters,  and  any  person  from  whose  land  it  is  with- 
held or  whose  water  supply  is  depleted,  will,  in  the  absence  of  an 
express  grant,  have  no  right  of  action  for  such  diversion  or  ob- 
struction.^ In  the  absence  of  an  agreement  and  assertion  of  abso- 
lute right,  no  length  of  time  creates  any  easement  by  which  the 
owner  of  lower  land  is  prevented  from  using  his  lands  as  he  sees 
fit,  although  such  use  as  he  puts  them  to  lessens  the  facilities  for 
surface  drainage  of  an  adjacent  owner,  so  long  as  the  lower  pro- 
prietor erects  no  barriers  to  the  free  and  full  flow  of  the  surface 
waters.^  So  an  owner  of  land  may  erect  structures  upon  it  of  any 
size,  height  or  depth,  irrespective  of  their  effect  upon  mere  sui'face 
water  or  the  natural  drainage/  And  so  a  man  has  a  right  to 
cultivate  his  land  in  the  usual  and  reasonable  way,  as  well  upon  a 
hill  as  in  the  plain,  and  cannot  be  i-estrained  from  doing  so  because 
a  mill-pond  below  may  be  injured  by  the  washing  down  of  the  soil/ 
And  a  land  owner  may  change  the  grade  of  its  surface,  and  if,  in 
the  absence  of  grant,  prescription  or  mutual  stipulation,  mere 
surface  water  or  the  natural  drainage  is  displaced,  obstructed  or 
caused  to  accumulate  upon  adjoining  land,  or  upon  a  street  or 
highway,  no  right  of  action  arises,  and  this  rule  prevails  generally 
where  the  common-law   doctrine  is  recognized/     And  whether 

^Anderson  v.  Henderson,  124  111.  164,  14  West.  Rep.  109. 

^Greatrex  v.  Hayicard,  8  Exch.  291;  Wood  v.  Wdud,  3  Exch.  748;  Broad- 
lent  V.  Rmnsbotham,  11  Exch.  603;  Rawstron  v.  Taylor,  Id.  369;  Barkley 
V.  Wilcox,  86  N.  Y.  140;  Buff  urn  v.  Harris,  5  R.  I.  243;  Chatfield  v.  Wil- 
son, 28  Vt.  49,  and  authorities  cited  first  ante,  p.  295,  note  1. 

^White  V.  SMdon  (Sup.  Ct.  Dec.  30,  1889)  28  N.  Y.  S.  R.  475. 

*Parks  V.  Newburyport,  10  Gray,  28;  Bates  v.  Smith,  103  Mass.  181; 
Boiclsby  V.  Speer,  31  N.  J.  L.  351;  Gannon  v.  Hargadon,  10  Allen,  106. 

^Middlesex  Co.  v,  McCue,  149  Mass.  103. 

^Raiostron  v.  Taylor,  11  Exch.  369;  Gannon  v.  Hargadon,  10  Allen,  106; 
Luther  v.Winnisimrnet  Co.  9  Cush.  171;  Morrill  v.  Hurley,  120  Mass.  99; 
Parks  V.  Newburyport,  10  Gray,  28;  Flagg  v.  Worcester,  13  Gray,  601;  Dick- 
inson V.  Worcester,  7  Allen,  19;  Bangor  v.  Lansil,  51  Me.  521;  Goodale  v. 
Tuttle,  29  N.  Y.  459. 


Chap.  XriL]       EIGHT  OF  LAND  OWNER  TO  CONTROL    WATERS.  207 

the  rule  at  common  law  or  the  civil  law  prevails,  no  right  of 
action  can  be  sustained  against  the  owner  of  adjoining  higher 
land,  who,  in  the  oi-dinary  course  of  husbandry,  causes  sur- 
face water  to  flow  on  his  land  with  increased  velocity  or  in  a 
more  contracted  channel,  if  no  damage  is  caused  thereby,'  and 
no  change  in  the  distribution  of  surface  water  from  a  superior 
to  an  inferior  tenement  is  material,  unless  injury  is  done.^  So, 
where  the  normal  flow  of  surface  water  over  the  plaintiff's  land 
was  but  slightly  increased  by  the  diversion,  which  caused  no  dam- 
age, he  cannot  recover.' 

The  right  so  to  use  and  improve  one's  own  land  does  not,  how- 
ever, include  tlie  right  to  do  so  merely  by  transferring  from  it 
surface  waters  naturally  resting  upon  it  to  the  land  of  another.  It 
is  only  where  such  shifting  of  the  burden  follows  as  an  incident 
to  using  or  improving  his  land,  as  such  land  is  ordinarily  used  or 
improved,  that  it  can  be  justified.*  Thus  the  owner  of  an  ui3per 
estate,  on  which  he  has  erected  a  house,  has  no  right  to  collect  the 
waters  which  fall  upon  his  roof  into  gutters,  and  from  thence,  bv 
means  of  a  conducting  pipe,  transfer  and  discharge  them,  althougli 
upon  his  own  land,  at  such  a  place  and  in  such  a  manner  that, 
necessarily  and  inevitably,  they  are  precipitated  upon  lower  prem- 
ises in  an  unnatural,  unusual  and  injurious  volume  and  quantity.^ 

A  railroad  company  may,  for  the  purpose  of  properly  constructin"- 
its  roadbed,  take  earth  from  one  part  of  its  premises  and  use  it 
upon  the  roadbed,  thus  leaving  an  excavation  or  ditch  along  each 
side  of  it,  which  is  the  usual  and  ordinary  way  of  constructino- 
railroads  in  prairie  countries.  It  is  evident  that  in  a  flat  country, 
if  it  be  desirable  to  raise  the  roadbed  above  the  natural  surface  of 
the  ground,  the  earth  must  be  taken  from  alongside  of  the  road- 
bed, and  that  so  taking  it  will  necessarily  leave  an  excavation  or 

J  ^Peck  V.  Goodberlett,  109  N.  Y.  180,  12  Cent.  Rep.  199. 

»Jeffers  v.  Jeffers,  107  N.  Y.  650,  9  Cent.  Rep.  845. 

^Harrington  v.  Peck.ll  111.  App.  63;  Livingston  v.  McDonald,  21  Iowa,  160- 
Kobsv.  Minneapolis,  22  Minn.  159;  O'Brien  v.  St.  Paul,  25  Minn'  3;3l' 
Hogemon  v.  St.  Paul,  M.  &M.  R.  Co.  31  ]\Iinn.  224;  Blakebj  Ticp.  v.  Divine 
36  Minn.  53;  Pye  v.  Mankato,  36  Minn.  373;  Olson  v.  St.  Paul,  M.  &  M. 
R.  Co.  38  Minn.  419;  Jordan  v.  St.  Paul,  M.  &  M.  R.  Co.  (Minn.  1889)  6 
L.  R.  A.  573;  Kauffman  v.  Griesemer,  26  Pa.  408;  Bark'eii  v  Wilcox  86 
N.  Y.  140;  JVoonan  v.  Albany,  79  N.  Y.  470;  Adams  v.  Walker  34  Conn 
466. 

'Beach  v.  Gaylord  (Minn.  .June  18,  1890)  45  N.  W.  Rep.  1095. 


298  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

ditch  from  which  the  earth  has  been  taken.  It  is,  in  accordance 
■with  the  common-law  rule  as  to  surface  waters,  the  right  of  a  land 
owner  to  use  and  improve  his  own  land  for  the  purpose  for  which 
similar  land  is  ordinarily  used,  and  he  may  do  what  is  necessary 
for  that  purpose  and  he  may  build  upon  it,  or  raise  or  lower  its 
surface,  even  though  the  effect  may  be  to  prevent  surface  water 
which  before  flowed  upon  it  from  coming  upon  it,  or  to  draw 
from  adjoining  land  surface  water  which  would  otherwise  remain 
there,  or  to  shed  surface  water  over  land  on  which  it  would  not 
otherwise  go.*  But  a  raih-oad  companj'-  which  diverts  the  flow  of 
surface  water  from  its  natural  channel,  and  conducts  it  through  a 
ditch  to  a  point  where  it  overflows  the  land  of  another,  is  liable 
for  resulting  damages.' 

Damage  to  land  from  surface  water,  as  an  incidental  conse- 
quence of  the  lawful  and  riglitful  use  of  its  easement  by  a  railroad 
company,  is  damnum  absque  injuria.^ 

A  party  is  not  responsible  for  damages  which  do  not  result  from 
his  own  act  or  omission,  but  more  from  the  act  of  a  stranger. 
Hence  where  plaintiff's  land  was  injured  by  water  flowing  from  a 
railroad  ditch,  where  much  of  the  water  complained  of  had  been 
conducted  thereon  by  artificial  ditches  constructed  by  other  par- 
ties with  whom  the  railroad  company  was  in  no  manner  connected, 
the  company  was  not  liable.  Whatever  damage  happened  by  turn- 
ing water  into  the  railroad  ditch  by  other  parties,  without  the 
sanction  or  approval  of  the  company,  such  other  parties  alone 
must  be  held  for." 

The  courts  of  Pennsylvania,  Illinois,  North  Carolina  and  Lou- 
isiana have  adopted  the  civil-law  rnle,  and  it  has  been  referred  to 
with  approval  by  the  court  of  Ohio." 

^Lee  V.   Minneapolis,  22    Minn.    13;    O'Brien  v.  St.  Paul,  25  Minn.  331; 

Henderson  v.  Minneapolis,  33  Minn.  319;  Rowe  v.  St.  Paul,  M.  &  M.  R.  Co. 

41  Minn.  384. 
^East  St.  Louis  &  C.  R.  Co.  v.  Eisentraut  (III.  June  30,  1890)  24  N.  E.  Rep. 

760. 
^Bell  V.  Norfolk  Southern  R.  Co.  101  N.  C.  21 ;  Hill  v.  Cincinnati,  W.  &  M. 

R.  Co.  109  Ind.  511,  8  West.  Rep.  47. 
^Chicago  &  A.  R.  Co.  v.  Glenney,  118  111.  487,  6  West.  Rep.  544. 
^Martin  v.  Ruldle,  2  Casey  (Pa.)  415,  note;  Qormley  v.  Sanford,  52  111.  159; 

Porter  v.  Durham,  74  N.  C.   767;  Bowman  v.  New  Orleans,  27  La.   Ann. 

502;  TootU  V.  Clifton,  22  Ohio  St.  247;  Barkley  v.  Wilcox.  86  N.  Y.  140, 

145. 


Chap.  XIII.]       KIGUT  OF  LAND  OWNER  TO  CONTKOL    WATERS.  2^9 

In  1850,  the  common  law  of  England  was  adopted  by  statute 
in  California,  and  in  Oghurn  v.  Connor,  46  Cal.  346,  the  court 
attempted  to  apply  the  rule  of  the  common  law,  but  by  mistake  of 
law  applied  the  rule  of  the  civil  law,  following  an  earlier  case  not 
reported.  Seventeen  years  later  the  error  was  discovered,  in 
McDaniel  v.  Gummings,  83  Cal.  515,  8  L.  R.  A,  575,  but  the 
court,  considering  the  rule  of  stare  decisis  as  of  controlling  force, 
lias  allowed  the  rule  of  the  civil  law  regarding  surface  water  to 
stand  as  the  law  of  that  State. 

In  Xew  Hampshire  a  land  owner  may  disturb  the  natural  drain- 
age only  to  the  degree  necessary  in  the  reasonable  use  of  his  own 
land;  and  what  is  such  reasonable  use  is  ordinarily  for  the  jury  to 
determine  only  under  appropriate  instructions.* 

Every  citizen  holds  his  property  subject  to  the  implied  obliga- 
tion that  he  will  use  it  in  such  a  way  as  not  to  prevent  others  from 
enjoying  the  use  of  their  property."  And  a  land  owner  has  the 
right  in  good  faith  to  improve  and  till  his  farms,  and  to  fill  up  sag 
holes,  so  that  water  will  not  accumulate  and  stay  in  them,  even 
if  the  water  arising  from  rainfalls  or  melting  snow  should  there- 
by find  its  way  into  a  ravine  and  upon  the  land  of  another,  and 
incidentally  increase  the  flow  thereon.'  One  having  an  easement 
to  discliarge  surface  water  through  an  open  ditch  upon  lands  of  an 
adjoining  owner  may,  if  he  does  not  thereby  increase  the  flow, 
change  the  ditch  to  a  tile  drain.* 

But  he  has  no  right  to  rid  his  laud  of  surface  wator  or  superfi- 
cially percolating  water  by  collecting  it  in  artificial  channels  and 
discharging  it  through  or  upon  theland  of  an  adjoining  proprie- 
tor.*    This  is  alike  the  rule  of  the  common  law  and  of  the  civil 

^Bassett  v.  Salisbury  Mfg.  Co.  43  N.  H.  569;  Swett  v.  Cutis,  50  N.  H.  439. 
See  Hoyt  v.  Hudson,  27  Wis.  656,  and  Uurdman  v.  North  Eafiern  R.  Co. 
L.  R.  3  C.  P.  Div.  168,  as  to  reasonable  use.  See  also  Williamson  v 
Lock's  Creek  Canal  Co.  76  N.  C.  478. 

^State  V.  Yox)p,  97  N.  C.  477. 

^Oreffory  v.  Bush,  64  Mich.  37,  7We.st.  Rep.  172;  Goodalev.  Tuttle,  29N.Y.  467; 
Pettigrew  v.  Evansville,  25  Wis.  229;  Iloi/t  v.  Hudson,  27  Wis.  656;  Bangor 
V.  Lansil,  51  Me.  521;  Flftgg  v.  Worcester,  13  Gray,  601. 
*Damdsonv.  Hutchinson  (N.  J.  Dec.  16,  1889)  18  All.  Rep.  977. 

^Stewart  v.  Schneider,  22  Neb.  286;  Pyle  v.  Richards,   17  Neb.  181;    White  v. 
Chapin,  12  Allen,  516;  Foot  v.  Bronson,  4  Lans,  47;  Uicks  v.  Silliman,  93 
111.  255;  Kauffnian  v.  Oriesemer,  26  Pa.  415;  Martin  v.  Riddle,  26  Pa.  415, 
note;  Miller  v.  Laabach,  47  Pa.  154;  Butler  v.  Peck,  16  Oliio  St.  334;  Liv 
ingston  v.  McDonald,  21  Iowa,  160;  Davis  v.  Londgreen,  8  Neb.  43*;  Por- 


300  IMPOSED   DUTIES,  PERSONAL.  [Part  11, 

law.'  A  land  owner  may,  at  common  law,  by  levees  or  other  ap- 
pliances on  his  own  premises,  prevent  the  natural  flow  of  surface 
water  upon  the  surface  of  his  own  lands  from  those  above,  and  is 
not  liable  for  the  injuries  resulting  to  the  lands  above  by  reason  of 
the  accumulation  of  such  water  thereon.''  And  the  same  rule 
holds  good  when  applied  to  sub-surface  water  passing  through  the 
earth  by  percolation.  Isor  can  such  adjoining  proprietor  claim  as 
a  benefit  the  legal  right,  or,  as  some  of  the  authorities  hold,  acquire 
the  privilege  by  prescription,  of  having  the  same  continue  to  pass 
over  or  through  his  lands  against  the  consent  of  his  neighbor.* 

In  California,  the  principle  declared  in  Jiex  v.  Pagham  Sewer 
Comrs.^  8  Barn.  &  C.  355,  that  the  waters  of  the  sea  are  a  common 
enemy  against  which  any  man  may  erect  barriers,  although  this 
protection  may  cause  a  higher  flow  of  the  tide  upon  his  neighbors' 
lands,  has  been  applied  to  the  flood  waters  of  the  large  rivers. 

But  in  Beard  v.  Murphy^  37  Yt.  104,  the  court  recognized  that,, 
under  the  rule  of  the  civil  law,  if  the  surface  water  naturally 
falling  upon  the  plaintiff's  land  would  run  off  upon  the  defendant's 
land,  the  defendant  had  no  right  to  put  up  any  obstruction  to  pre- 

ter  V.  Durliam,  74  N.  C.  767;  Pettigrew  v.  Evansville,  25  Wis.  233,  227; 
Fremont,  E.  &  M.  V.  R.  Co.  v.  Marley,  25  Neb.  138.  See  Goldsmith  v. 
Elsas,  53  Ga.  186;  Oillisv.  Nelson,  16  La.  Ann.  275;  Sowers  v.  Shiff,  15- 
La.  Ann.  300;  Weddell  v.  Eapner  (Ind.  May  15,  1890)  24  N.  E.  Rep.  368; 
Stoddard  v.  F'ilgur,  21  111.  App.  560;  Schneider  v.  Missouri  P.  R.  Co.  29 
Mo.  App.  68.  An  owner  of  lower  lands  may  abate  as  a  nuisance  an  em- 
bankment erected  by  an  upper  owner  upon  bis  own  land  to  increase  the 
discharge  of  surface  water  on  the  lower  owner's  lands  for  the  purpose  of 
coercing  the  latter  to  allow  the  water  to  flow  over  his  lands  as  it  had  been 
permitted  to  flow  for  some  years,  under  a  verbal  license  and  tacit  con- 
sent of  a  former  owner,  provided  he  does  not  injure  the  upper  owner's 
land.     White  v.  Sheldon  (Sup.  Ct.  Dec.  30,  1889)  28  N.  Y.  S.  R.  475. 

^Barkley  v.  Wilcox,  86  N.  Y.  148;  Gould,  Waters,  471. 

^Benthal  v.  Seifert,  77  Ind.  303;  Cairo  R.  Co.  v.  Stevens,  73  Ind.  278; 
Schliehter  v.  Phillipy,  67  Ind.  201 ;  Morrison  v.  Bucksport  &  B.  R.  Co. 
67  Me.  353;  Bangor  v.  Lansil,  51  Me.  531;  Sicett  v.  Cutis,  50  K  H.  439; 
Burke  v.  Missouri  P.  R.  Co.  29  Mo.  App.  370;  Schneider  v.  Missouri  P.  R. 
Co.  29  Mo.  App.  68.  A  land  owner  may  obstruct  or  hinder  the  natural 
flow  of  surface  water,  in  the  use  and  improvement  of  his  land,  without 
providing  drains  to  prevent  accumulation  upon  the  adjacent  lands,  sub- 
ject to  the  reasonable  restriction  that  he  must  so  use  his  land  as  not  to 
injure  his  neighbor.     Rowe  v.  Si.  Paul,  M.  &  M.  R.  Co.  41  Minn.  384. 

^Pettigrew  v.  Evansville,  25  Wis.  223;  Luther  v.  Winnisimmet  Co.  9  Gush.  171; 
A.Hhley  v.  Wolcott,  11  Gush.  192;  Ooodale  v.  Tuttle,  29  N.  Y.  45^  \  Rawstron 
V.  Taylor,  33  Eng.  L.  «&  Eq.  428;  Broadbent  v.  Ramsbotham,  34  Eng.  L.  & 
Eq.  555;'Ellis  v.  Duncan,  21  Barb.  230;  Fryer  v.  Warne,  29  Wis.  511; 
Hoyt  v.  Hudson,  27  Wis.  656. 

*McDaniel  v.  Cummings,  83  Gal.  515,  8  L.  R.  A.  575. 


Chap.  XIII.]    EIGHT    OF    LAND    OWNER    TO    CONTKOL    WATERS.         301 

vent  its  continuing  to  do  so.  It  is  the  duty  at  common  law  of 
every  owner  of  land,  if  lie  wishes  to  carry  off  the  surface  water 
from  his  land,  to  do  so  without  material  injurj'  or  detriment  to  the 
lands  of  his  neighbors,  and  he  cannot  resort  to  extraordinary 
means  and  cut  canals  and  channels  to  cast  it  upon  his  neighl)or's 
land  in  unusual  amounts  and  places  to  his  serious  injury.  He  is 
not  required,  however,  to  pi-event  the  surface  water  from  his  land 
from  flowing  on  to  the  land  of  another,  when  such  flowing  is  pro- 
duced by  natural  causes.  Considerable  latitude  is  left  to  the  own- 
ers of  estates  as  to  the  manner  in  which  they  will  cultivate  and 
improve  them,  and  in  so  doing  they  may  undoubtedly  somewhat 
change  the  course  and  flow  of  the  surface  water  so  as  measurably 
to  increase  the  quantity  passing  over  or  upon  the  lands  of  another. 
They  may  level  and  fill  up  wet  and  low  places  so  as  to  render 
them  arable,  or  fit  for  crops,  thus  causing  the  water  which  pre- 
viously settled  in  them  to  spread  and  pass  to  the  lands  of  others 
without  serious  injury  to  them.  But  the  extent  to  which  any 
proprietor  may  go  in  these  and  other  ways  in  incidentally,  while 
improving  his  own  land,  turning  the  surface  water  of  his  own  land 
off  on  the  lands  of  others,  must,  in  each  case,  be  determined  by 
the  degree  of  comparative  injury  it  may  produce  and  relieve.  In 
Admns  v.  WaJlxer^  34  Conn.  466,  the  court  refused  to  permit  the 
grading  of  the  surface  of  laud  to  prevent  the  water  flowing  into  a 
well  of  the  owner,  because  it  cast  it  injuriously  upon  the  land  of 
another.  The  distinction  between  surface  and  subterranean  waters 
has  been  stated  ante^  §  25. 


CHAPTEE  XIV. 

CARE  OF  SURFACE  WATER  IN  CITIES. 

Sec.  29.  Duty  of  Otoner  of  City  Lots  Regarding  Surface  or  Perco- 
lating Water. 

Sec.  30.  Duty  of  City  in  Controlling  Surface  and  Percolating- 
Water,  and  in  Supplying  Water  Artificially. 

Sec.  31.  Negligence  in  Adopting  Plan,  or  in  Its  Execution,  or  in  Care 
of  Gutters  and  Drains. 

Section  29.— Duty  of  Owner  of  City  Lots  Regarding 
Surface  or  Percolating  Water. 

Generally  the  owner  of  improved  city  property,  even  where  the 
rule  of  the  civil  law  prevails,  will  be  held  to  the  common-law  rule- 
respecting  surface  water,' 

An  owner  of  a  city  lot  may  fill  it  up  and  build  upon  it  and  the 
surface  water  of  adjoining  lots  may  thus  be  prevented  from  flow- 
ing upon  it,  or  the  surface  water  may  be  thrown  from  it  upon 
adjoining  lots  and  flow  upon  them  in  a  different  way  and  in  larger 
quantities .  than  before,  and  yet  no  liability  will  arise.  Eacb 
owner  may  improve  his  lot,  and  protect  it  from  surface  water. 
He  may  not  collect  such  water  into  a  channel,  and  throw  it  upon 
his  neighbor's  lot.  But  he  is  not  bound,  for  his  neighbor's  pro- 
tection, to  collect  the  surface  water  which  falls  upon  his  lot,  and 
lead  it  to  a  sewer."  ISTor  is  he  liable  for  not  preventing  surface 
water  flowing  upon  his  land  and  thence  upon  the  land  of  another.* 

^Phillips  V.  WaierJiouse,  69  Iowa,  199;  Mellor  v.  Pilgrim,  3  111.  App.  476,  7111. 
App.  306;  Vanderwiele  v.  Taylor,  65  N.  Y.  341;  Earl  v.  Be  Hart,  12  N. 
J.  Eq.  280;  Doerhaum  v.  Fischer,  1  Mo.  App.  149;  Gross  v.  Lampasas,  74 
TeXi  195;  Watson  v.  Kingston,  114  N.Y.  88;  Boitz  ^.Armstrong,  8  Watts 
&  S.  40;  Young  v.  Leedom,  67  Pa.  351;  Livingston  v.  McDonald,  21  Iowa, 
160;  Whitney  v.  Sanders,  3  Pittsb.  L.  J.  226;  Phinizy  v.  Augusta,  47  Ga. 
260;  Freudenstein  v.  Heine,  6  Mo.  App.  287;  Oormley  v.  Sanford,  50  111. 
159;  Gould,  Waters,  268;  Thomas  v.  Kenyan,  1  Daly,  132. 

"^Sentner  v.  Tees,  132  Pa.  216;  Vandenciele  v.  Taylor,  65  N.  Y.  341;  Gannon. 
V.  Hargadon,  10  Allen,  106;  Lynch  v.  Neio  York,  76  N.  Y.  60;  Franldin 
V.  Fisk,  13  Allen,  211;  Parks  v.  Newburyport,  10  Gray,  28;  Flagg  v.  Wor- 
cester, 13  Gray,  601;  Dickinson  v.  Worcester,  7  Allen,  19. 

^Mori-ill  V.  Hurley,  120  Mass.  99. 


Chap,  XIV.]  DUTY    OF    OWNER    OF    CITY    LOTS.  303 

A  city  property  owner  lias  a  ric^lit  to  preventsnrface  water  from 
flowing  over  his  hind  by  tlie  buikling  of  a  wall,  even  though  thei-c- 
by  the  water  is  forced  back  into  the  street;  and  his  act  in  build- 
ing such  wall  will  not  prevent  a  recover}'  fi-oin  the  city  for  dam- 
ages to  his  property  from  the  improper  construction  of  a  drain  to 
carry  off  such  water.' 

A  person  whose  premises  are  situated  on  the  lower  side  of  a 
street  cannot  recover  for  damages  from  surface  water  from  the 
street,  wdiere  it  does  not  appear  that  the  premises  are  subjected  to 
a  further  burden  than  they  were  required  to  bear  when  they  were 
in  a  natural  state.* 

An  owner  of  a  lot  in  the  city  has  the  right  so  to  improve  it  as 
to  cast  rain-water  falling  upon  it  on  the  adjacent  street  or  lot  at 
the  established  grade,  and  he  will  not  be  liable  for  damages  caused 
by  the  flowing  of  such  water  upon  a  neighboring  lot  which  is 
below  grade.*  Nor  will  he  be  liable  for  permitting  water  to 
flow  upon  his  land  and  thence  upon  an  adjoining  lot.*  xVn 
owner  may  raise  his  lot  and  cast  back  the  surface  water  flowino- 
upon  him.* 

An  owner  of  lower  lands  may  abate  as  a  nuisance  an  embank- 
ment erected  by  an  upper  owner  upon  his  own  land  to  increase 
the  discharge  of  surface  water  on  the  lower  owner's  lands,  for  the 
purpose  of  coercing  the  latter  to  allow  the  water  to  flow  as  it  had 
been  permitted  to  flow  for  some  years  under  a  verbal  license  and 
tacit  consent  of  a  former  owner,  provided  he  does  not  injure  the 
upper  owner's  land.* 

Where  the  owner  of  land  in  a  city  upon  a  public  street,  the 
surface  of  which  land  is  depressed  so  as  to  allow  surface  water  to 
collect  and  flow  to  the  street  over  another  portion  of  his  land,  sells 
the  portion  on  which  the  waters  so  collect,  and  thereafter  permits 
them  to  collect  and  flow  between  the  lot  sold  and  that  retained  by 

^  Gross  V.  Lampasas,  74  Tex.  195. 

^Watson  V.  Kingston,  114  N.  Y.  88. 

^Phillips  V.  Waterlwuse,  69  Iowa,  199. 

*Morrill  v.  Hurley,  120  Mass.  99. 

^Fi-anklin  v.  FisJc,  13  Allen,  211;  Gannon  v.  Eargadon,  10  Allen,  106;  Parks 
V.  Neicburijport,  10  Gray.  28;  Flagg  v.  Worcester,  13  Gray,  601;  Dickinson 
V.  Worcester,  7  Allen,  19;  Bates  v.  Smith,  100  ]\Iass.  181. 

^White  V.  Sheldon  (Sup.  Ct.  Dec.  30,  1889)  28  N.  Y.  S.  R.  475. 


304  IMPOSED  DUTIES,  PEKSONAL.  [Part  II. 

him,  for  a  j^eriod  of  over  twenty  years,  he  will  be  enjoined  from 
thereafter  obstructing  the  flow.' 

In  Iowa  it  is  held  that  the  owner  of  what  the  civil  law  calls  the 
dominant  or  higher  estate  has  the  right  to  conduct  the  water  fall- 
ing upon  his  land,  by  means  of  underground  tile  drains,  into  the 
channel  provided  by  nature  for  the  drainage  of  his  land,  and 
through  such  channel  to  cast  it  upon  the  servient  or  lower  estate.* 
But  in  order  that  one  may  have  the  right  to  drain  his  land  into 
a  natural  channel  or  depression  there  must  be  a  natural  channel, 
depression  or  outlet  thereon.^  But  under  no  circumstances  may 
one  permit  water  to  accumulate  and  stagnate  upon  his  own  prem- 
ises to  the  injury  of  the  health  of  others." 

SECTioif  30.— Duty  of  City  in  Controlling  Surface 
and  Percolating  Water,  and  in  Supplying 
Water  Artificially. 

The  rule  obtaining  among  individuals  at  common  law  holds 
good,  even  in  States  which  apply  the  civil  law  in  rural  districts, 
between  towns  and  villages  and  individual  proprietors.  Thus,  a 
municipal  corporation  is  liable  to  one  upon  whose  lands  it  conducts 
surface  water  wrongfully  diverted  from  its  natural  channel.* 
The  same  general  principle  is  applied  to  towns  and  cities  in  their 
capacity  of  owners  of  land  for  streets  and  alleys  and  other  public 
uses,  which  applies  at  common  law  to  individuals,  and  such  munic- 

^Ross  V.  Mackeney,  46  N.  J .  Eq.  140. 

"^  Vannest  v.  Fleming,  79  Iowa,  638. 

^Ribordy  v.  Pellachoud,  28  HI.  App.  303. 

^Hamilton  v.  Columbus,  53  Ga.  435. 

^ Clark  V.  Rochester,  43  Hun,  271;  Miller  v.  Morristoion  (N.  J.  June  30,  1890) 
20  Atl.  Rep.  61;  Field  v.  West  Orange,  46  N.  J.  Eq.  183;  Sullivan  v.  Phil- 
lips lio  Ind.  320,  9  West.  Rep.  49;  Fremont,  E.  &  31.  V.  R.  Co.  v.  Mar- 
ley  '25  TSTeb.  138;  I?i7nan  v.  Tripp,  11  R.  I.  520,  23  Am.  Rep.  520;  Winn 
V.  Rutland,  52  Vt.  481;  Seifert  v.  Brooklyn,  101  N.  Y.  136,  2  Cent.  Rep. 
135;  Olson  v.  St.  Paul,  M.  cfc  M.  R.  Co.  38  Minn.  419;  O'Brienv.  St.  Paul, 
25  Minn.  331;  Pettigrew  v.  Evansville,  25  Wis.  223;  Nevins  v.  Peoria,  41 
111.  502,  89  Am.  Dec.  392;  Ashley  v.  Port  Huron,  35  Micb.  296,  24  Am. 
Rep.  553;  Beach  v.  Elmira,  23  Hun,  158;  BastabU  v.  Syracuse,  8  Hun, 
587  73  N.  Y.  64;  Vincennes  v.  Richards,  23  Ind.  381;  Aurora  v.  Reed,  57 
111.  30;  Alton  v.  Hope,  68  111.  167;  Merrifield  v.  Worcester,  110  Mass.  216; 
Crabtree  v.  Baker,  75  Ala.  91,  51  Am.  Rep.  424;  Oillison  v.  Charleston.  16 
W.  Va.  282,  37  Am.  Rep.  763;  Hitchins  v.  Frostburg,  68  Md.  100,  6  Am. 
St.' Rep.  422;  Rychlicke  v.  St.  Louis,  98  Mo.  497,  4  L.  R.  A.  594;  Byrnes 
V.  Colwes,  67  N.  Y.  204;  Noonan  v.  Albany,  79  N.  Y.  470;  Denver  v. 
Rhodes,  9  Colo.  554. 


Chap.  XIY.]       DUTY    OF   CITY    IX   CONTROLLING    WATER.  305 

ipal  corporations,  like  other  owners,  are  not  usually  held  liable  in 
damages  to  the  proprietors  of  other  lands  for  interrupting  the  flow 
of  surface  water  across  streets  or  lands  held  for  other  public  uses.' 

Commissioners  in  grading  highways  are  not  bound  to  provide  a 
channel  for  the  drainage  of  surface  water,  and  the  town  is  not 
liable  for  injuries  resulting  from  their  omission  to  do  so.'  Where 
the  quantity  of  surface  water  sent  to  the  point  of  discharge  is  in- 
creased by  an  enlargement  of  the  area  of  drainage,  but  such  en- 
largement results  entirely  from  making  the  grade  of  the  streets 
conform  to  the  grade  established  by  the  proper  authority,  any  in- 
jury resulting  from  the  increase  in  the  quantity  of  water  dis- 
charged at  that  point  is  regarded  in  law  as  dmnnmn  absque  inju- 
ria.^ And  a  city  is  not  answerable  for  damages  to  a  land  owner 
from  surface  water,  which  he  suffers  in  consequence  of  changes 
made  in  the  highways  pursuant  to  authority  of  law.* 

That  a  street  level  has  been  raised  does  not  cast  upon  the  city 
the  duty  to  protect  lots  along  the  highway  by  sewers  and  embank- 
ments, from  the  rain-water  which  falls  on  the  street  and  flows 
therefrom,  unless  the  improvement  diverts  some  stream  of  water 
upon  the  lots  or  collects  surface  water  into  a  channel  and  throws 
it  upon  the  lots.*  But  a  municipal  corporation  is  required  to  exe- 
cute the  work  of  constructing  a  public  improvement,  such  as  a 
sewer,  in  a  careful  and  skillful  manner ;  and  if,  by  reason  of  the 
neglect  or  want  of  skill  of  the  person  engaged  in  the  work,  prop- 
erty of  a  citizen,  built  with  reference  to  an  established  grade,  is 
injured  by  surface  water,  the  proper  channels  for  the  flow  of  which 
are  obstructed,  the  city  is  liable."     So  a  municipality  changing 

^  Parks  V.  Newhuryport,  10  Gray,  28;  Flarjg  v.  Worcester,  13  Gray,  601. 

■^ Acker  v.  New  Castle,  48  Hun,  312;   Wilson  v.  New  York,  1  Denio,  595;  Flagg 

V.  Worcester,  13  Gray,  601;  Clark  v.  Wilmington,  5  Harr.  (Del.)  243;  Imler 

V.  Springfield,  55  Mo.  119;  Murphy  v.  Chicago,  29  111.  275;  Nebraska  City 

V.  Lampkin,  6  Neb.  27;  Pontiac  v.  Carter,  32  Mich.  164;  Hotey  v.  Mayo, 

43  Me.  322;  Benden  v.  Nashua,  17  N.  II.  477;  O'Connor  v.  Pittsburgh,  18 

Pa.  187;  Humes  v.  Knoxville,  1  Humph.  403. 
^Miller  V.  Morristown  (N.  J.  June  30,  1890)  20  Atl.  Rep.  61. 
*Field  V.  West  Orange,  46  N.  J.  Eq.  183. 
^Lynch  v.  New  York,  76  N.  Y.  60;   Wilson  v.  New  York,  1  Denio,  595;  MiU» 

V.  Brooklyn,  32  N.  Y.  489;  Kavanagh  v.  Brooklyn,  38  Barb.  232;  Mui-phy 

V.  Chicago,  29  111.  279. 
^Denver  V.  Rhodes,  9  Colo.  554;  Nevinsv.  Peoria,  41  111.  502;  Ellis  v.  Iowa 

City,  29  Iowa,   229;  Spelman  v.  Portage,  41  Wis.    144;  Leavenworth   v. 

Casey,  McCahon  (Kan.)  124;  Cotes  v.  Davenport,  9  Iowa,  227;  Boss  v. 

Clinton,  40  Iowa,  600. 
20 


306  IMPOSED   DUTIES,    PERSONAL.  [Part   II. 

the  grade  in  rebuilding  the  outlet  of  a  street  sewer,  and  negli- 
gently raising  it  above  that  of  the  sewer,  thereby  causing  the  dis- 
charge of  sewage  upon  private  premises,  is  liable.'      And  although 
no  responsibility  attaches  for  damages  done  by  the  diversion  of 
surface  water,  where  the  diversion  is  merely  incidental  to  and 
occasioned  by  the  making  or  alteration  of   street  grades,'    yet 
there  is  a  reasonable  limit  to  this  exemption  from  liability,  and 
a  municipality  has  no  right  by  artificial  drains  to  divert  surface 
water  from  its  natural  course,  and  throw  it  in  a  body  large  enough 
to  do  substantial  injury  on  land  where  it  would  not  go  except  for 
such  artificial  drains,  although  the  work  is  done  for  the  improve- 
ment or  construction  of  a  highway."      If    gutters  in   streets  do 
not  bring  more  water  than  the  streets  would  have  brought  with- 
out them,  or  would  have  come  down  if  there  had  been  no  streets 
there,  a  city  is  not  liable  for  surface  waters  flowing  therefrom  upon 
laud  of  a  private  owner  ;*    but  municipal    authorities  may  not 
intercept  by  a  drain,  surface  waters  which  would  naturally  flow  on 
adjoining  lands,  and  thence  along  the  highway  to  an  intersecting 
highway,  then  along  the  latter  for  a  considerable  distance,  and 
discharge  them  on  other  lands,  even  if  they  be  lands  of  the  same 
owner.''     But  a  city  may  refuse  permission  to  a  land  owner  to 
turn  surface  water  accustomed  to  flow  over  his  land  into  a  gutter 
of  one  of  its  streets,  to  prevent  its  flowing  in  its  former  course, 
althouo-h  the  improvement  of  the  street  obstructed  its  flow  in  the 
direction  in  which  it  naturally  ran.'     Indeed,  a  city  owes  no  duty 
to  keep  open  a  drain  in  a  highway  to  prevent  surface  water  flow- 
ing on  the  land  of  a  private  owner,  if  the  gutter  receives  no  more 
water  than  naturally  would  flow  there  if  there  was  no  street  at 
that  place.''      But  a  very  different  rule  exists  as  to  natural  streams 
from  that  governing  a  city  in  the  management  of  surface  water. 

Wefer  v.  Detroit,  67  Mich.  346,  11  West.  Rep.  530. 

"^Miller  v.  Morrutown  (N.  J.  June  30,  1890)  20  Atl.  Rep.  61. 

^Fieldv.  West  Orange,  46  N.  J.  Eq.  183;  Nevins  v.  Peoria,  41  111.  502;  Spel- 
man  v.  Portage,  41  Wis.  144;  Bartle  v.  Des  Moines,  38  Iowa,  414;  Bloom- 
inrjton  v.  Brokaw,  77111.  194;  LeavemcortJiY.  Casey,  McCahon  (Kan.)  124; 
Rhodes  v.  Cleveland,  10  Ohio,  159;  Akron  v,  McComb,  18  Ohio,  229. 

'^Collins  V.  Waltham,  151  Mass.  190. 

^Slack  V.  Lawrence  Twp.  (N.  J.  March  31,  1890)  19  Atl.  Rep.  663. 

^Bush  V.  Portland  (Or.  March  24,  1890)  23  Pac.  Rep.  667. 

''Collins  V.  Waltham,  151  Mass.  196. 


Chap.  XIV.]       DUTY    OF    CITY    IN    CONTROLLING    WATEK.  oUT 

A  city  has  not  the  right,  with  rcf^pcct  to  natural  streams,  to  injure 
the  property  of  others  by  badly  constructed  and  insulhcient  cul- 
verts or  passageways  obstructing  the  free  flow  of  water ;  and  a 
liability  will  exist  against  it  for  filling  up  or  damming  back  a 
stream,  so  that  it  overflows  its  banks  and  flows  upon  the  lands  of 
another.'  But  a  creek  flowing  in  a  zigzag  direction  through  a 
municipal  corporation,  and  which  is  fed  by  mountain  springs,  and 
swollen  at  times  by  sudden  rains  and  melting  snows,  is,  at  least  so 
far  as  it  interferes  with  and  crosses  the  streets  and  alleys  of  the 
city,  within  its  control  and  subject  to  its  municipal  power;  so  that, 
in  the  absence  of  objection  on  the  part  of  persons  who  have  the 
right  to  insist  upon  having  the  stream  flow  in  its  natural  channel, 
the  city  may  make  a  valid  contract  to  have  the  creek  straightened  ;* 
or,  if  injurious  to  public  health,  it  may  be  conducted  in  a  covered 
culvert.* 

It  is  an  established  maxim  that  no  action  will  lie  for  the  conse- 
quences of  an  act  done  under  lawful  authority,  if  proper  care  and 
skill  are  exercised  in  performing  such  act."  That  cannot  be  a 
nuisance,  such  as  to  give  a  common-law  right  of  action,  which  the 
law  authorizes  ;  and  the  grant  of  power  by  the  Legislature  to  dig 
sewers,  to  construct  tunnels  or  build  bridges,  carries  with  it  all 
that  is  necessary  for  the  exercise  of  the  power.'  Public  officers 
or  corporations  cannot  be  liable  to  an  action  for  what  they  have 
done  under  lawful  authority,  and  in  a  proper  manner."  All  the 
cases  recognize  the  constitutional  rule  that  private  property  can- 
not be  taken  for  public  use  without  just  compensation ;  but  the 
conti-olling  weight  of  authority  is  to  the  elfect  that  no  merely 
consequential  damage  to  property,  even  though  it  may  temporarily 
deprive  the  owner  of  its  use,  is  a  taking  of  such  property  within 
the  meaning  of  the  constitutional  provision.  Acts  done  in  the 
proper  exercise  of  governmental  powers,  and  not  directly  en- 
croaching upon  private  property,  though  their  consequences  may 
impair  its  use,  are  universally  held  not  to  be  a  taking  within  the 

'  Young  v.  Kansas  City,  37  Mo.  App.  101. 

UfcGuire  v.  Rapid  City  (Dak.  Oct.  10,  1889)  5  L.  R.  A.  753. 

^Mtirphey  v.  Wilmington,  5  Del.  Ch.  381. 

*Ely  V.  Rochester,  3(j  Barb.  133,  137. 

^Northern  Transp.  Co.  of  Ohio  v.  Chicago,  99  U.  S.  G35,  21  L.  ed.  336. 

^Radcliffy.  Biooklyn,  4  N.  Y.  195. 


308  IMPOSED    DUTIES,  PERSONAL.  [Part    II. 

meaning  of  the  constitutional  provision.  They  do  not  entitle  the 
owner  of  such  property  to  compensation  from  tlie  State  or  its 
agents,  or  give  him  any  right  of  action. 

In  Northern  Transp.  Co.  of  Ohio  v.  Chicago,  99  U.  S.  635,  21 
L.  ed.  336,  the  defendant,  in  the  construction  of  a  tunnel  under 
the  Chicago  River,  had  constructed  a  coffer-dam,  which  practically 
excluded  the  plaintiff's  boats  from  access  to  its  wharves,  and  by 
the  accumulation  of  cUhris  and  material  for  the  work  had  equally 
excluded  the  plaintiff  and  its  customers  from  its  warehouses. 
These  acts  were  found  to  be  necessary  to  the  accomplishment  of 
the  work,  and  temporary  in  these  effects,  and  the  damage  to  the 
plaintiff  was  held  to  be  consequential  merely  and  damnum  absque 
injuria. 

In  Atwater  v.  Canandaigua,  56  Hun,  293,  the  flooding  of  a 
portion  of  plaintiff's  farm,  situated  on  the  shore  of  Canandaigua 
Lake,  caused  by  the  construction,  by  the  village  defendant,  of  a 
coffer-dam  in  the  outlet  of  the  lake,  under  authority  of  the  Legis- 
lature, for  the  purpose  of  draining  and  reclaiming  wet  and  swamp 
lands  in  said  village,  was  held  to  be  damnum  absque  injuria. 

A  city  has  the  right,  on  its  own  land,  to  extend  sewers  for 
drainage  to  low-water  mark,  discharging  them  into  the  sea.  Such 
erections  are  not  a  public  nuisance,  the  subjects  of  action  for  pri- 
vate damage,  although  the  land  on  which  they  extend  has  long 
been  used  as  a  dock  for  plaintiff's  wharf." 

If,  in  sinking  driven  wells  on  its  own  land,  a  city  does  no  more 
than  intercept  the  percolation  of  underground  currents,  and  there- 
by prevent  such  water  from  running  through  the  soil  and  reaching 
a  stream,  an  action  will  not  lie  for  the  diversion  of  the  waters  of 
the  stream.'' 

A  city  is  not  bound  to  make  a  chemical  examination  of  the 
water  of  free  public  wells,  for  the  purpose  of  ascertaining  whether 
it  is  pure  and  wholesome,  where  it  has  no  notice  that  the  water  is 
unwholesome,  and  furnishes  a  public  water  supply  by  running 
water  in  addition  to  the  wells.'  Nor  is  a  city  liable,  until  notice, 
for  negligence  in  maintaining  a  well  containing  impure  water 

^BoHton  V.  Lecraw,  58  U.  S.  17  How.  436,  15  L.  ed.  118. 

^Van  WycUyn  v.  Brooklyn,\l%  N.  Y.  434. 

^Danalier  v.  Brooklyn.  51  Hun,  563,  affirmed,  119  N.  Y.  341,  7  L.  R.  A.  593. 


Chap.  Xiy.]       DUTY    OF   CITY    IN    CONTROLLING    WATER.  309 

caused  by  the  properties  contained  in  the  eartli  througli  which  the 
water  percolates.' 

"Where,  under  a  contract  between  a  city  and  water-supply  com- 
pany, the  hatter  is  placed  under  oblio:ations  to  lay  down  pipes  in 
the  streets  and  alleys  of  the  city  so  as  to  make  the  water  accessible 
to  the  citizen  for  his  private  use  by  coimection  with  pipes  to  be 
constructed  and  paid  for  by  the  owner  of  the  premises,  there  is  no 
obligation  requiring  the  company  to  furnish  the  citizen  with  con- 
necting pipes  or  any  right  on  the  part  of  the  company  to  enter 
and  lay  down  pipes  upon  private  property  for  that  purpose,  and 
the  citizen  must  therefore  contract  with  the  company  or  some 
other  person  for  the  construction  of  connecting  pipes.  No  power 
can  be  given  to  a  water-supply  company  by  a  city  ordinance  to 
select  the  person  who  is  to  contract  with  the  citizen,  and  to  Dre- 
vent  any  person,  without  a  license  from  that  corporation,  from  dis- 
charging such  a  duty,  without  executing  a  bond  to  the  company 
with  such  a  penalty  as  it  may  prescribe.  When  a  water-supply 
company  undertakes  the  performance  of  the  public  duty  of  pro- 
viding water  for  the  use  of  the  citizen,  and  is  permitted  to  exer- 
cise the  full  right  of  appropriating  a  part  of  the  streets  to  its  own 
use,  the  company  devotes  its  property,  including  its  mains,  to  the 
public  use ;  and,  while  it  will  be  permitted  to  control  and  use  its 
property  for  the  purposes  contemplated,  it  has  no  right  to  prohibit 
such  connection  with  its  main  pipes  as  is  necessary  for  the  supply 
of  water  to  the  private  citizen  or  for  private  use,  or  to  dictate  to 
the  owner  whom  he  shall  employ  for  that  purpose,  or  prevent  one 
whose  education  and  experience  fit  him  for  the  business  of 
plumbing  from  laying  down  pipes  and  connecting  them  with  the 
main  pipes  of  the  corporation.  The  owner  of  the  property  de- 
siring to  use  the  main  pipe  of  the  company  by  means  of  the  con- 
necting pipe,  so  as  to  convey  water  to  his  private  dwelling,  may 
contract  with  the  company  for  its  use,  and  if  he  offers  one  fully 
skilled  in  the  business  to  make  the  connection  for  him,  it  cannot 
make  the  objection  that  he  has  no  permit  and  has  failed  to  exe- 
cute a  bond  as  required  by  the  company.  The  connection  should 
be  made  under  the  supervision  of  the  company  and  at  a  point 
convenient  for  the  owner  of  the  dwelling,  and  not  wherever  the 

WanaJier  v.  Brooklyn,  51  Hun,  563,  affirmed.  119  N.  Y.  241,  7  L.  R.  A.  592. 


310  IMPOSED    DUTIES,  PERSONAL.  [Part    II. 

owner  may  desire,  and  in  such  manner  as  may  be  suggested  by  the 
party  employed  to  do  the  work.  An}'  other  rule  would  enable 
the  company  to  select  its  own  men  for  the  work  and  place  the  city 
at  the  mercy  of  the  corporation/ 

Section  2>l.—Megligenc6  in  Adopting  Plan,  or  in  Its 
Execution,  or  in  Care  of  Gutters  and  Drains. 

To  determine  whether  there  is  municipal  responsibility,  the  in- 
quiry must  be  whether  the  department  whose  misfeasance  or  non- 
feasance is  complained  of  is  a  part  of  the  machinery  for  carrying 
on  the  municipal  government,  and  whether  it  was  at  the  time  en- 
gaged in  the  discharge  of  such  a  duty,  or  charged  with  a  duty 
primarily  resting  upon  the  city.* 

A  municipal  corporation  is  an  instrumentality  of  government, 
and  is  not  liable  for  a  failure  to  exercise  legislative  or  judicial 
powers,  or  for  an  inadvertent,  improper  exercise  of  such  powers.' 

"Where  a  duty  is  a  corporate  duty  in  respect  of  its  special  or  local 
interests,  is  not  a  public  agency,  and  is  absolute  and  perfect,  and 
not  discretionary  or  judicial  in  its  nature,  and  is  one  owing  to 
an  individual  or  in  the  performance  of  which  he  is  specially  inter- 
ested, the  corporation  is  liable  in  a  civil  action  for  the  damages 
resulting  to  the  individual  by  its  neglect  to  perform  the  duty,  or 
for  the  want  of  proper  care  or  want  of  reasonable  skill  of  its  offi- 
cers or  servants  acting  under  its  direction  or  authority  in  the  exe- 
cution of  such  a  duty,  on  the  same  principles  and  to  the  same 
extent  as  an  individual  or  private  corporation  would  be  under  like 
circumstances.*     But  the  duty  imposed  must  be  absolute  or  im- 

^Franke  v.  Paducah  Water  Supply  Co.  (Ky.  April  23,  1889)  4  L.  R.  A.  265. 

^Pettenqill  v.  Yonhers,  116  N.  Y.  558;  Ehrgott  v.  New  YorTc,  96  N.  Y.  264; 
Eim»  V.  Lockport,  50  N.  Y.  236;  Elgin  v.  Kimball,  90  III.  356;  Hill  v. 
Boston,  122  Mass.  344. 

*Wheeler  v.  Plymouth,  116  Ind.  158;  Dooley  v.  Sallivan,  112  Ind.  451,  11 
West.  Rep.  816;  Terre  Haute  v.  Eudnut,  112  Ind.  542, 11  West.  Rep.  333; 
Faulkner  \.  Aurora,  85  Ind.  130;  Lafayette  v.  Timberlake,  88  Ind.  330; 
McDade  v.  Chester  City,  117  Pa.  414,  10  Cent.  Rep.  779;  McArthur  v. 
Saginaw,  58  Mich.  357;  Agnew  v.  Corunna,  55  Mich.  428;  Bines  v.  Char- 
lotte, 72  Mich.  278,  1  L.  R.  A.  844;  Kiley  v.  Kansas  City,  87  Mo.  108. 
2  West.  Rep.  201;  Hubbellv.  Viroqua,  67  Wis.  343;  Robinson  v.  Green- 
mile  42  Ohio  St.  625,  51  Am.  Rep.  857,  and  note;  Anderson  v.  East,  117 
Ind.'  126,  2  L.  R.  A.  712. 

*Lloyd  V  New  York,  5  N.  Y.  369;  McCullough  v.  Brooklyn,  23  Wend.  458; 
2  Dillon,  Mun.  Corp.  §  980;  Kiley  v.  Kansas  City,  87  Mo.  103. 


Chap.  XIV.]  NEGLIGENCE    IN    AUOrXING    PLAJI.  311 

perative,  not  such  as  under  a  _2:rant  of  authority  is  intrusted  to  the 
judgment  and  discretion  of  the  municipal  autliorities ;  for  it  is  a 
well-settled  doctrine  that  a  municipal  corporation  is  not  liable  to 
an  action  for  damages,  either  for  the  nonexercise  of,  or  for  the 
manner  in  which  in  good  faith  it  exercises,  discretionary  powers 
of  a  public  or  legislative  character.' 

Municipalities  are  answerable  for  neglect  to  perform  an  absolute 
duty,  as  distinguished  from  a  discretionary  duty,  and  for  neglect 
to  execute  a  private,  as  distinguished  from  a  public,  power." 

When  a  legal  duty  has  been  imposed  by  statute  upon  a  munic- 
ipal corporation,  it  is  undoubtedly  liable  for  injuries  resulting 
from  the  neglect  of  that  duty;  in  such  case  it  stands  on  the  same 
footing,  in  respect  to  negligence,  as  a  purely  private  corporation 
or  an  individual.' 

While  the  rule  is  universally  admitted,  that  no  relief  can  be  ob- 
tained for  an  injury  suffered  through  the  actual  exercise  of  an 
official. discretion  personal  to  the  officers,  or,  as  it  is  sometimes 
called,  the  exercise  of  judicial  functions  by  the  officers,  of  a  munic- 
ipal corporation,  unless  the  result  is  the  creation  of  an  absolute 
nuisance,  or  an  invasion  of  the  absolute  right  of  property,*  yet 
the  application  of  this  principle  to  special  cases  has  often  resulted 
in  decisions  by  no  means  harmonious.  The  rule  stated  by  Elliott, 
J.^  in  North  Vernon  v.  Voegler,  103  Ind.  314,  1  West.  Eep.  566, 
is  an  attempt  to  draw  a  line  of  distinction  between  liability  and 
exemption  therefrom.     It  is  held  in  that  case  that,  while  a  munic- 

hVcBade  v.  Chester,  117  Pa.  414,  10  Cent.  Rep.  783. 

Uuley  V.  Ka7isas  City,  87  Mo.  103,  2  West.  Rep.  201. 

^Erie  V.  Schwingle,  23  Pa.  388;  Murphy  v.  Lmoell,  124  Mass.  564;  Aldrich  v. 
Tripp,  11  R.  I.  141;  Little  Ilock  v.  Willis,  27  Ark.  572;  Eastman  v.  Mere- 
dith, 36  N.  H.  284. 

*Vincennes  v.  Richards,  28  Ind.  381;  Noonan  v.  Albany,  79  N.  Y.  475;  Cubit 
V.  O'Dett,  51  Mich.  347;  Byrnes  v.  Cohoes,  67  N.Y.  204;  McCord  v.  Iliyh, 
24  Iowa,  336;  Lacour  v.  Mayor,  3  Duer,  406;  Richardson  v.  Boston,  60  U. 
8.  19  How.  263,  15  L.  ed.  639;  Sleight  v.  Kingston,  11  Hun,  594;  Barton 
V.  Syracuse,  36  N.  Y.  54;  Wilson  v.  Marsh,  34  Vt.  352;  Lloijd\.  New 
York,  5  N.  Y.  369.  55  Am.  Dec.  347;  Bastable  v.  Syracuse,  8  Hun,  587; 
Beach  V.  Elmira,  22  Hun,  158;  Rochester  White  Lead  Co.  v.  Rochester,  3 
N.  Y.  466;  Perry  v.  Worcester,  6  Gray,  544;  AsJiley  v.  Port  Huron,  35 
Mich.  296;  Story  v.  JS'ew  York  Elevated  R.  Co.  90  N.  Y.  122;  Seifert  v. 
Brooklyn,  101  N.  Y.  136;  Camden  v.  Mulford,  26  N.  J.  L.  56.  But  the 
fact  that  an  officer  is  clothed  with  a  discretion  in  the  discharge  of  a  duty 
as  to  the  manner  of  its  performance  or  as  to  the  control  of  attendant  acts 
or  circumstances  necessarily  arising  in  its  course,  does  not  give  to  his 
acts  a  judicial  character.    McCord  v.  High,  24  Iowa,  336. 


312  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

ipal  corporation  is  not  liable  for  mere  errors  of  judgment  in  the 
plan  of  a  public  improvement,  it  is  liable  for  negligence  in  devis- 
ing the  plan,  as  well  as  in  the  manner  of  executing  the  work; 
that  where  the  lack  of  care  and  skill  in  devising  the  plan  is  so 
great  as  to  constitute  negligence  in  the  very  act  of  selection  of  the 
method  adopted,  the  municipal  corporation  is  liable  for  injuries 
resulting  to  adjacent  property,  although  the  plan  adopted  be  faith- 
fully carried  out.  The  proposition  was  thus  stated  by  Frazer,  «/., 
in  Indianapolis  v.  Huffei^  30  Ind.  235,  237 :  "An  incorporated 
city  is  not  ordinarily  liable  for  consequential  injuries  to  private 
property,  resulting  from  the  grading  and  improvement  of  its 
streets,  if,  in  the  making  of  such  improvements,  reasonable  skill 
and  care  be  used  to  avoid  the  injuries.  The  skill  and  care  which 
are  incumbent  relate  as  well  to  the  capacity  of  the  sewer  as  to  the 
mere  mechanism  in  its  construction — as  well  to  its  plan  as  to  its 
execution.  Logansport  v.  Wright^  25  Ind.  513,  and  authorities 
there  cited.  Rochester  White  Lead  Co.  v.  Rochester.,  3  JST.Y.  463, 
is  especially  in  point.  Indeed,  the  liability  of  a  city  in  such  cases 
rests  on  exactly  the  same  foundation  as  that  of  a  natural  person.  An 
infallible  judgment  is  not  required  to  avoid  liability,  but  the  con- 
struction of  a  sewer  (rendered  necessary  by  street  improvements) 
of  such  incapacity  that  every  sane  man  knows  in  advance  that  it 
will  not  afford  relief  from  the  consequences  of  obstruction  to  the 
natural  drainage  caused  by  the  filling  of  the  street,  would  be  dis- 
pensing with  the  use  of  common  sense,  and  by  no  means  consis- 
tent with  that  reasonable  care  which  the  law  requires.  It  would^ 
indeed,  be  carelessness  most  gross  and  wanton — not  merely  an 
error  of  judgment,  but  a  failure  to  exercise  judgment  at  all." 
This  test  has  been  consistently  adhered  to  in  that  State.'  Indeed^ 
the  authorities  which  hold  that,  if  a  municipal  corporation,  by  its 
system  of  constructing  sewers,  render  an  outlet  necessary,  it  will 
be  guilty  of  actionable  negligence  in  not  providing  a  sufficient  one» 
in  effect  adopt  this  rule.^ 

In  Byrnes  v.  Cohoes.,  67  JS".  Y.  204,  it  is  said  that  the  rule,  that 

^Indianapolis  v.  Lawyer,  38  Ind.  348;  Indianapolis  v.  TaU,  39  Ind.  282;  Wei» 
V.  Madison,  75  Ind.  241,  39  Am.  Rep.  135;  Cummins  v.  Seymour,  79  Ind. 
491,  41  Am.  Rep.  618;  Evansville  v.  Decker,  84  Ind.  325;  North  Vernon 
V.  Voegler,  89  Ind.  79;  Crawfordsville  v.  Bond,  96  Ind.  236. 

« See  authorities  cited  ante,  p.  290,  notes  2,  3,  p.  292,  note  4. 


Chap.  Xiy.]  NEGLIGENCE    IN   ADOPTING    PLAN.  313 

a  municipal  corporation  is  not  liable  for  an  omission  to  supply 
drainage  or  sewerage,  does  not  apply  where  the  necessity  for  the 
drainage  is  caused  by  the  act  of  the  corporation  itself.  In  Roch- 
ester White  Lead  Co.  v.  Rochester^  3  N.  Y.  403,  the  culvert  was 
built  after  the  plan  adopted  by  the  city  cou!icil,  but  that  body  saw 
"  fit  to  select  for  the  responsible  duty  of  adviser  in  these  important 
matters  a  man  who  laid  no  claim  to  the  skill  of  a  professional  en- 
gineer. He  was  their  agent ;  and  it  will  not  answer  for  an  indi- 
vidual or  a  corpoi'ation  to  select  an  incompetent  agent  and  then 
shield  themselves  from  the  consequences  of  his  injudicious  acts  by 
justifying  under  his  advice.  jSTo  careful  and  prudent  man  would 
employ  an  agent  to  direct  so  important  a  work  who  was  destitute 
alike  of  education  and  skill  in  his  particular  department  of  pro- 
fessional science."  In  that  case  the  immediate  cause  of  the  injury 
was  the  flood  occasioned  by  rain  and  the  melting  of  snow  on  the 
tract  of  400  acres  drained  by  a  natural  stream  carried  through 
this  culvert.  Several  engineers  stated  on  the  trial  "  that  the  cul- 
vert was  much  smaller  than  it  should  have  been.  It  was  proved 
to  be  the  practice  among  skillful  engineers  to  build  culverts  large 
enough  to  provide  against  accidental  obstructions  and  extraordi- 
nary freshets,  and  that  within  this  rule  the  culvert  in  question 
should  have  been  at  least  one  third  larger."  Here  plainly  the 
fault  was  in  the  plan  adopted  by  the  common  council  and  not  in 
its  imperfect  or  negligent  execution,  although  attempts  have  been 
made  to  rest  the  case  upon  an  imperfect  execution  of  the  work. 
Thus  it  is  said  a  corporation  is  not  responsible  for  any  error  or 
want  of  judgment  ujion  which  its  system  of  drainage  was  devised.' 
But  it  was  the  want  of  due  diligence  in  taking  the  advice  of  a  reason- 
ably competent  civil  engineer  that  charged  the  common  council 
with  negligence  in  the  exercise  of  its  judicial  function,  or  in  the 
failure  to  exercise  it  with  an  advised  discretion. 

In  Hubhell  V.  YonJcers,  35  Hun,  349,  when  the  injury  resulted 
from  want  of  an  embankment  along  an  exposed  hio-hway,  the 
opinion,  after  acquiescing  with  approval  in  the  result  reached  in 
Urquhartv.  Ogdensburg,  91  N.Y.  67,  and  3fill8  v.  BrooMyn,  32 
N.Y.  489,  concludes  that  these  cases  do  not  decide  that  a  munic- 
ipal corporation  may  escape  liability  for  a  defective  construction 

^Mills  V.  Brooklyn,  33  N.  Y.  489;  McCarthy  v.  Syracuse,  46  N.  Y.  194. 


314  IMPOSED   DUTIES,  PEKSONAL.  [Part   II. 

of  an  improvement,  merely  because  it  is  made  in  accordance  with 
an  approved  plan.     If,  it  is  said,  a  bridge  over  a  ravine  or  a  water 
stream  was  built  by  a  city  or  village,  and  left  without  a  side  guard, 
or  a  street  was  constructed  on  a  causeway  high  above  the  natural 
level  of  the  ground,  and  left  without  side  rails  or  protection,  re- 
sponsibility for  injuries  resulting  from  their  absence  could  not  be 
avoided  by  showing  that  they  were  made  in  accordance  with  the 
plans.     Such  a  doctrine,  carried  to  its  legitimate  conclusion  and 
result,  might  release  all  municipal  corporations  from  the  duty  im- 
posed on  them  to  maintain  the  streets  within  their  limits  in  a  safe 
condition  for  travel  in  the  usual  modes.     The  case  before   the 
court  was  that  of  a  public  street,  built  ten  feet  in  the  air,  and  left 
for  ten  years  unprotected,  and  the  claim   by  the  city  was  that 
the  plan  of  improvement  called  for  no  side  rails  or  other  protec- 
tion to  the  traveler.     The  court  ruled  that  if  the  public  had  a 
right  to  require  guards  for  the  sides  of  the  street,  and  the  failure 
to  erect  them  was  negligence,  the  city  was  liable  for  injuries  result- 
in  o-  from  their  absence.     On  appea?  the  case  was  reversed  only  on 
the  ground  that  the  words  in  the  city  charter  " '  exposed  places, ' 
with  reference   to   such   a   case   as   this,  must   mean  '  dangerous 
places ; '  and,  considering  the  facts  in  this  case,  we  do  not  think 
this  was  such  a  dangerous  or  exposed  place  that  a  failure  to  guard 
it  with  railings  could  fairly  be  called  negligence.     The  cases  cited 
by  plaintiff's  counsel"  as  to  the  duty  of  a  town  or  city  to  guard 
the  edge  of  a  road  passing  along  a  precipice,  do  not  control  the 
decision  of  this  case The  same  reasons  prevail  as  to  rail- 
ings on  a  bridge,  for  their  absence  would  strike  everyone  as  a  plain, 
if  not  criminal,  neglect  of  even  ordinary  care." 

In  Ivoi-y  V.  Deerj>arlc,  116  N.  Y.  476,  it  is  ruled  that,  while 
hio-hway  commissioners  may  exercise  their  judgtnent  and  discre- 
tion as  to  the  application  of  funds  in  their  hands,  that  discretion 
must  be  reasonably  exercised. 

In  Atwater  v.  Canandaigua,  56  Hun,  293,  where  authority  was 
given  to  a  village  to  erect  certain  works  at  the  foot  of  a  lake  for 
the  purpose  of  sewerage  and  drainage,  and  it  was  claimed  that 
the  plan  adopted  had  caused  the  overflow  of  lands  on  the  lake,  it 

^HubMl  V.  Yonkers,  104  N.  Y.  434,  6  Cent.  Rep.  499. 

^Macauley  v.  New  York,  67  N.  Y.  602;  Kennedy  v.  New  York,  73  N.  Y.  365. 


•Chap.  XIV.]  NEGLIGENCE    IN    ADOPTING    PLAN.  315 

is  said:  "  But  even  if  another  mode  might  have  been  devised  for 
accomplishing  the  same  result,  the  defendants  cannot  be  charged 
^s  wrong-doers  for  adopting  the  mode  employed.  As  was  said  by 
Johnson,  P.  J.,  in  Ely  v.  Rochester,  26  Barb.  133-136  :  '  The 
power  to  do  the  act,  when  no  limitation  is  placed  upon  it  by  the 
sovereign  authoritj^  by  which  it  is  granted,  necessarily  includes 
the  right  of  determining  upon  the  plan  and  mode  of  doing  it.' 
This  principle  must  apply,  in  the  absence  of  negligence  or  bad 
faith,  to  justify  the  decision  of  the  defendants  in  respect  to  the 

time  when  the  work  should  be  commenced "VVe  find  no 

evidence  in  the  case  which  would  have  warranted  the  jmyj  in  find- 
ing that  the  defendants  were  guilty  of  negligence  in  any  respect 
in  the  construction  or  placing  of  the  coffer-dam,  and,  without 
such  finding,  there  could  be  no  recovery  for  the  plaintiff"." 

In  Diamond  Match  Co.  v.  New  Haven,  55  Conn.  510,  6  New 
Eng.  Rep.  174,  it  is  ruled  that  where  a  municipality,  acting  under 
the  authority  of  an  Act  of  the  Legislature,  changed  the  channel 
of  a  river,  all  that  could  be  required  of  the  municipality  was  that 
its  officials  should  bring  to  the  service  reasonable  care  and  judg- 
ment, and  that  the  professional  men  employed  by  it  in  planning 
and  superintending  the  work  should  possess  all  the  knowledge 
and  skill  that  experience  in  such  work  would  naturally  give  them, 
and  that  when  the  municipal  officials  have  employed  a  competent 
engineer  to  plan  such  work,  the  municipality  will  not  be  respon- 
sible for  his  oversights  or  misjudgments. 

The  City  of  Boston,  while  acting  under  Mass.  Stat.  187-i,  chap. 
196,  undertook  to  alter,  deepen  and  widen  a  brook,  and  in  so  doing 
enlarged  the  culverts  under  roads  above  the  land  of  an  owner,  so 
as  to  permit  the  water  to  flow  down  in  excessive  quantities,  with- 
out having  made  a  provision  to  enlarge  the  outlet  or  to  keep  the 
lower  part  of  the  stream  unobstructed,  to  allow  the  excessive  flow 
of  water  to  escape,  whereby  such  owners  property  was  damaged, 
and  it  was  adjudged  liable  for  the  injury.' 

It  is  stated  as  the  law  in  Van  Pelt  v.  Davenport,  42  Iowa,  308, 
20  Am.  Rep.  622,  that,  as  a  city  must  act  through  the  agency  of 
others,  it  is  its  duty  to  select  a  competent  engineer.  When  such 
selection  is  made,  the  city  has  in  that  regard  discharged  its  duty, 

^Boston  Belting  Co.  v.  Boston,  149  Mass.  44. 


316  IMPOSED   DUTIES,  PERSONAL.  [Part    II, 

and  no  direct  negligence  or  omission  is  attributable  to  it.  If  a 
competent  engineer  acts  in  good  faith  in  drafting  the  plans  of  a 
culvert,  and  honestly  believes  that  he  is  making  it  large  enough 
to  accomplish  the  desired  purpose,  then  no  negligence  of  the  serv- 
ant is  attributable  to  the  principal.*  And  therefore  in  an  action 
against  a  city  for  injuries  caused  by  a  defective  sewer,  or  by  a. 
sewer  of  inadequate  size,  such  original  defect  having  been  in  the 
plan,  evidence  by  defendant  is  admissible  to  prove  that  reasonable 
care  was  exercised  in  employing  a  competent  person  to  prepare 
the  plan,  and  that  ordinary  care  was  used  in  seeing  that  he  exer- 
cised his  skill  in  making  such  plan." 

In  Harrigan  v.  Wilmington  (Del.  Feb.  23, 1888),  11  Cent.  Eep. 
251,  although  a  civil  engineer  was  provided  for  in  the  city  charter 
"  to  devise  all  the  means  for  carrying  such  improvements  into 
effect,"  it  was  ruled  that  the  city  would  be  liable  "  if  the  means 
adopted  to  make  an  improvement,  for  instance,  the  building  of  a 
sewer,  were  grossly  and  palpably  inadequate  for  the  purpose  re- 
quired, forbidding  the  idea  of  any  sort  of  reasonable  care  and 
diligence." 

The  question  in  Mills  v.  Brooklyn,  32  N.  Y.  495,  as  stated  by 
Judge  Denio,  was :  "  The  grievance  of  which  the  plaintifEs 
complain  is  that  suthcient  sewerage  to  carry  off  the  surface  water 
from  their  lot  and  house  has  not  been  provided.  A  sewer  of  cer- 
tain capacity  was  built,  but  it  was  insufficient  to  carry  off  all  the 
water  which  came  down  in  a  rain  storm  and  the  plaintiffs'  prem- 
ises were  to  a  certain  extent  unprotected.  Their  condition  was 
certainly  no  worse  than  it  would  have  been  if  no  sewer  at  all  had 
been  constructed."  It  was  there  held  that  the  corporation  was 
not  liable. 

In  Barton  v.  Syracuse,  36  N.  Y.  54,  the  court  held  that  "  in 
the  construction  of  sewers  and  in  keeping  them  in  repair  munic- 
ipal corporations  act  ministerially,  and  are  bound  to  exercise 
needful  diligence,  prudence  and  care." 

In  Lewenthal  v.  New  ITorh,  61  Barb.  511,  the  action  was  for 

'See  also  Ferguson  v,  Davis  County,  57  Iowa,  601;  Gould  v.  Topeka,  32  Kan. 

485;  Clemence  v.  Auburn,  66  N.Y.  334,  339;   Uiicago  v.  Qallngher,  44  111. 

295;  Chicago  v.  Langlass,  66  111.  361;  Prideaux  v.  Mineral  Point,  43  Wis. 

513;  Perry  v.  Worcester,  6  Gray,  544. 
''Terre  Haute  v.  Hudnut,  112  Ind.  542,  11  West.  Rep.  333. 


Chap.  XIY.]  NEGLIGENCE   IN    ADOPTING   PLAN.  317 

overflow  of  plaintiff's  house  because  the  sewer  "  was  and  is  of  in- 
sufficient size  and  capacity  to  carry  off  the  water  and  refuse  which 
it  was  and  is  intended  to  do,"  and  "  is  utterly  insufficient  to  per- 
form the  work  for  which  it  was  constructed  ;  "  and  the  court  held 
the  city  liable,  when  notice  of  the  insufficiency  was  shown  to 
have  been  given. 

The  case  of  S7nith  v.  New  Yorlc,  06  N.  Y.  205,  related  to  a  sewer 
of  sufficient  capacity,  but  which  was  temporarily  obstructed  by  a 
deposit  of  mud  and  sand  of  which  the  corporation  had  no  notice, 
and  an  overflow  injuring  plaintiff  resulted.  It  was  held  that  the 
corporation  was  liable  for  negligence  alone,  which  could  not  be 
predicated  npon  the  facts  established. 

In  McCarthy  v.  Syracuse,  46  N".  Y.  194,  the  city  was  charged 
with  liability  for  an  injury  occurring  through  its  neglect  to  repair 
a  sewer  after  a  lapse  of  time  warranting  the  presumption  of  notice 
of  the  defect. 

In  Wilson  v.  New  Yorh,  1  Denio,  5.98,  the  damages  were  oc- 
casioned by  surface  water  naturally  falling  upon  the  plaintiff's 
premises,  but  prevented  from  flowing  off  by  the  changes  made  in 
grading  its  streets  by  the  city.  It  was  held  to  owe  no  duty  to  its 
citizen  to  furnish  drainage  for  the  water  naturally  collected  on  his 
premises,  and  that  no  liability  resulted  from  the  change  in  the 
street  grade,  made  under  statutory  authority.  It  was  further  said: 
*'  The  power  of  the  corporation  to  make  sewers  and  drains  is 
clear,  but  it  is  not  their  duty  to  make  every  sewer  or  drain  wliich 
may  be  desired  by  individuals  or  which  a  jury  might  even  find  to 
be  necessary  and  proper."  But  this  case  was  questioned  in  Weet 
V.  Brockjyort,  16  N.Y.  161,  note. 

Lynch  V.  Neio  YorTc,  76  N.  Y.  60,  was  also  a  case  where  the 
natural  flow  of  surface  water  and  drainage  was  obstructed  by  the 
exercise  of  municipal  power  in  grading,  pitching  and  raising  the 
public  streets,  and  the  city  was  declared  free  from  liability  for 
the  damages  incidentally  occasioned  to  property  in  consequence 
of  the  obstructed  drainage  and  its  omission  to  build  drains  for  the 
convenience  of  the  citizen. 

In  Selfert  v.  Brooklyn,  101  N.Y.  136,  2  Cent.  Rep.  135,  Seifert 
was  the  owner  of  a  house  and  lot  on  Throop  Avenue,  between 
Walton  and  Wallabout  Streets,  in  the  City  of  Brooklyn,  and  used 


318  IMPOSED   DUTIES,  PERSONAL.  [Part    II.. 

a  portion  of  the  premises  as  a  bakery.  The  Kent  Avenue  sewer 
was  located  in  Wallabout  Street,  and  was  the  main  sewer  of  a  tract  of 
several  hundred  acres.  There  were  many  lateral  sewers  emptying 
into  the  main  sewer,  which  was  originally  of  sufficient  size  to 
carry  off  the  water  flowing  into  it,  but  by  reason  of  the  rapid 
growth  of  the  city  became  inadequate  in  case  of  heavy  rain  storms 
to  carry  off  all  the  water,  and  as  a  result  became  choked  up,  and  a 
flood  of  water  was  forced  out  which  had  repeatedly,  during  the 
preceding  six  years,  flooded  Self  ert's  premises.  The  cellar  was  filled 
with  water  which  was  forced  out  of  the  man-holes  of  the  sewer. 
There  was  testimony  on  the  trial  tending  to  show  that  plaintiff's 
premises  were  on  grade.  The  sewers  were  built  on  a  plan  adopted 
by  the  proper  department,  and  the  sole  cause  of  the  flooding  of 
the  premises  was  the  inadequacy  of  the  main  sewer  to  carry  off 
the  water  from  the  lateral  sewers  emptying  into  it.  The  overflow 
of  the  sewer  in  that  vicinity  had  been  for  several  years  past  a 
matter  of  public  notoriety,  and  the  city  officials  had  had  repeated 
notice  of  the  damage  done  to  plaintiff.  The  judge  before  whom 
the  cause  was  tried  dismissed  the  complaint,  holding  that  the  city 
was  not  liable  when,  in  the  exercise  of  a  quasi  judicial  discretion, 
the  municipal  corporation  perhaps  made  a  mistake  as  to  the  ca- 
pacity of  a  sewer.  Upon  appeal  by  the  plaintiff  the  general  term 
reversed  this  decision  and  granted  a  new  trial.  In  disposing  of 
the  appeal  from  the  decision,  the  court  recited  the  facts  that  cer- 
tain officers  of  Brooklyn  were  constituted  by  statute  commission- 
ers of  sewage  and  drainage,'  with  power  to  devise  and  frame  a 
plan  of  drainage  and  sewerage  for  the  whole  city  upon  a  regular 
system,  and  upon  the  adoption  of  a  plan  to  proceed  to  construct 
such  of  the  drains  and  sewers  as  the  public  health,  convenience  or 
interest  shguld  demand,  or  so  much  thereof  as  might  be  necessary; 
and  the  commissioners  were  further  empowered,  whenever  it  be- 
came necessary,  to  construct  a  drain  or  sewer  in  any  street  or 
avenue  for  the  purpose  of  preventing  damage  to  property  or  to 

'  Where  tbe  duty  of  supplying  the  city  witli  water  is  made  by  statute  a  mu- 
nicipal duty,  such  commissioners  are  one  of  the  instrumentalities  of  the 
city  government,  so  as  to  render  the  city  liable  for  their  negligent  acts. 
Pe'ttengill  v.  Tonkers,  116  N.  Y.  558.  But  see  Child  v.  Boston,  86  Mass. 
42;  Gushing  v.  Bedford,  125  Mass.  526,  and  Bulger  v.  Eden,  82  Me.  352, 
9  L.  R.  A.  205,  where  ofHcers  on  whom  such  duties  were  imposed  by 
general  law  were  held  not  to  represent  the  city  or  render  it  liable  for 
their  negligence. 


Chap.  XI Y.J  NEGLIGENCE    IN   ADOPTING   PLAN.  319 

abate  a  nuisance,  and  if  the  same  was  not  in  accordance  witli  any 
plan  already  adopted,  to  construct  temporary  sewers  in  certain 
places  in  a  manner  to  avoid  such  damages  or  abate  such  nuisance. 
Under  the  authority  conferred  by  these  Acts,  the  commissioners^ 
prior  to  the  year  1868,  established  a  certain  drainage  district  cov- 
ering a  surface  of  nearly  twenty-three  hundred  acres  of  land,  and 
embracing  within  its  limits  a  teriitory  not  theretofore  drained  over 
the  lands  of  the  plaintiff,  situated  in  the  same  district,  and  which 
contemplated  the  construction  of  a  main  sewer  through  certain 
avenues  and  streets  into  which  it  was  designed  that  lateral  sewers 
intersecting  the  whole  district  should  empty,  as  they  should  be 
from  time  to  time  thereafter  constructed  for  the  convenience  of 
the  people  desiring  them.  In  pursuance  of  this  plan  the  main 
sewer  referred  to  was  built  in  1868,  and  subsequent  to  that  time 
various  lateral  sewers  were,  from  time  to  time,  between  1868  and 
the  time  of  the  trial  in  1884,  constructed  and  connected  with  said 
main  sewer. 

Within  a  short  time  after  the  completion  of  the  main  sewer, 
actual  use  demonstrated  that  it  had  not  sufficient  capacity  to 
cany  off  the  accumulations  of  water  and  matter  turned  into  it, 
and  the  result  was  that  at  times  of  heavy  rain  and  melting  snow 
the  collected  sewage,  being  obstructed  in  its  flow, was  forced  through 
the  man-holes  and  inundated  the  district  in  which  plaintiff  resided, 
inflicting  serious  injury  to  his  property.  These  inundations  com- 
menced nearly  ten  years  previous  to  the  trial  and  increased  in  fre- 
quency and  severity  as  new  lateral  sewers  were  from  time  to  time 
built  and  connected  with  the  main  trunk,  until  finally  they  occurred 
as  often  as  eight  or  ten  times  a  year,  and  became  well  known  to 
the  officers  of  the  corporation.  Notwithstanding  this  fact,  the 
corporation  continued  to  build  and  attach  lateral  sewers  to  the 
main  trunk,  and  increased  from  year  to  year  the  evil  produced  by 
the  defects  of  the  original  plan.  The  court  held  that  these  facts 
did  not  bring  the  case  within  the  rule  securing  the  immunity  of  a 
municipal  corporation  from  liability  for  damages  occasioned  to 
those  for  whose  benefit  an  improvement  is  instituted,  by  reason  of 
the  insufficiency  of  the  plan  adopted  to  wholly  relieve  their  wants, 
or  on  account  of  a  neglect  of  the  municipality  to  exercise  its  power 
in  making  desired  improvements  and  other  like  circumstances, 


320  IMPOSED   DUTIES,    PERSONAL.  [Part    II. 

wliich  was  said  to  be  quite  clearly  established  bj  the  cases.  The  lia- 
bility in  such  cases  has  been  generally,  if  not  always,  predicated 
upon  the  duty  which  the  corporation  owed  its  citizens  to  exercise 
the  power  conferred  upon  it  to  build  streets,  sewers,  etc.,  for  the 
convenience  and  benefit  of  its  property  owners,  and  its  exemption 
from  liability  was  based  upon  the  limitations  necessarily  surround- 
ing the  exercise  of  such  power  and  the  judicial  character  of  the 
functions  employed  in  performing  the  duty.  The  court  placed 
the  liability  of  the  city  in  this  case  upon  the  ground  that  munici- 
pal corporations  had  invariably  been  held  liable  for  damages 
occasioned  by  acts  resulting  in  the  creation  of  public  or  private 
nuisances,  or  for  an  unlawful  entry  upon  the  premises  of  another, 
whereby  injury  to  his  property  had  been  occasioned.'  This  prin- 
ciple has  been  uniformly  applied  to  the  acts  of  such  corporations 
in  constructing  streets,  sewers,  drains  and  gutters,  whereby  the 
surface  water  of  a  large  territory  which  did  not  naturally  flow 
in  that  direction  was  gathered  into  a  body  and  thus  precipi- 
tated upon  the  premises  of  an  individual,  occasioning  damages 
thereto." 

The  court  also  stated  as  a  ground  of  liability  that  the  exercise  of  a 
judicial  or  discretionary  power  by  a  municipal  corporation,  which 
results  in  a  direct  and  physical  injury  to  the  property  of  an  indi- 
vidual, and  which,  from  its  nature,  is  liable  to  be  repeated  and 
continuous  but  is  remediable  by  a  change  of  plan  or  the  adoption 
of  prudential  measures,  renders  the  corporation  liable  for  such 
damages  as  occur  in  consequence  of  its  continuance  of  the  original 
cause  after  notice,  and  an  omission  to  adopt  such  remedial  meas- 
ures as  experience  has  shown  to  be  necessary  and  proper ;  and 
that,  although  a  corporation  may  have  been  under  no  original  obli- 
gation to  citizens  to  build  a  sewer  at  the  time  and  in  the  manner 
it  did,  yet,  having  exercised  the  power  to  do  so  and  thereby  created 
a  private  nuisance  on  his  premises,  it  incurred  a  duty,  having  cre- 
ated the  necessity  for  its  exercise  and  having  the  power  to  perform 
it,  of  adopting  and  executing  such  measures  as  should  abate  the 

•Citing  Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  37  L .  ed. 

739.     See  also  two  late  cases  between  tke  same  parties,  137  U.  S.  568,  34 

L.  ed.  784,  decided  Jan.  5,  1891. 
^Bprnes  v.  Cohoes,  67  N.  Y.  204;  Basfable  v.  Syracuse,  8  Hun,  587,  72  N.  Y. 

64;  Noonan  v.  Albany,  79  N.  Y.  475;  Beach  v.  Elmira,  23  Hun,  158;  Field 

V.  West  Orange,  36  N.  J.  Eq.  120,  29  Alb.  L.  J.  397. 


Chap.  XIY.]  NEGLIGENCE    IN    ADOPTING    PLAN.  321 

nuisance  and  obviate  damao;e;'  that  it  is  a  principle  of  the  fun- 
damental law  that  the  property  of  individuals  cannot  be  taken  for 
public  use  except  upon  the  condition  that  just  compensation  be 
made  therefor,  and  any  statute  conferring  power  upon  a  munici- 
pal body,  the  exercise  of  which  results  in  the  appropriation,  de- 
struction or  physical  injury  of  private  property  by  such  body,  is 
inoperative  and  ineffectual  to  protect  it  from  liability  for  the  re- 
sultant damages,  unless  some  adequate  provision  is  contained  in 
the  statute  for  making  such  compensation.  The  immunity  which 
extends  to  the  consequences  following  the  exercise  of  judicial  or 
discretionary  power,  by  a  municipal  body  or  other  functionary, 
presupposes  that  such  consequences  are  lawful  in  their  character, 
and  that  the  act  performed  might  in  some  manner  be  lawfully  au- 
thorized." When  such  power  can  be  exercised  so  as  not  to  create 
a  nuisance,  and  does  not  require  the  appropriation  of  private  prop- 
erty to  effectuate  it,  an  unlawful  exercise  of  the  right  will  not  be 
inferred  from  the  gi'ant.  "Where,  however,  the  acts  done  are  of 
such  a  nature  as  to  constitute  a  positive  invasion  of  the  individual 
rights  guaranteed  by  the  Constitution,  legislative  sanction  is  inef- 
fectual as  a  protection  to  the  persons  or  corporation  performing 
such  acts  from  responsibility  for  their  consequences.^  It  has  been 
sometimes  suggested  that  the  principle  illustrated  in  the  maxim. 
Solus  pojouli  est  sujprema  lex,  may  be  applied  to  and  will  shield 
the  perpetrators  from  liability  for  damages  arising  through  the 
exercise  of  such  power  by  a  municipal  corporation ;  but  the  an- 
thorities  prove  that  this  maxim  cannot  be  thus  invoked.*  Indeed, 
the  cases  Avhere  such  a  doctrine  can  be  properly  applied  must  from 
the  very  nature  of  the  principle  be  confined  to  circumstances  of 
sudden  emergency,  threatening  disaster,  public  calamity,  and  pre- 
cluding a  resort  to  remedies  requiring  time  and  deliberation."  It 
is  suggested  in  the  latter  case  that  even  in  such  an  event,  under 

^Phinizy  v.  Augusta,  47  Ga.  263;  Byrnes  v.  Colioes,  67  N.  Y.  204.  See  Van 
Pelt  V.  Davenport,  42  Iowa,  302;  Crawfordsmlle  v.  Bond,  96  Ind.  236: 
Evansville  v.  Decker,  84  Ind.  335;  Fort  Wayne  v.  Coombs,  107  Ind.  75,  5 
West.  Rep.  233. 

^Woodcock  V.  Calais,  66  Me.  234;  E^tes  v.  China,  56  Me.  407;  Franklin  Wharf 
Co.  V.  Portland,  67  Me.  46;  Locks  db  Canals  v.  Lowell,  7  Gray,  223. 

^Radcliff's  Exrs.  v.  Brooklyn,  4  N.  Y.  195. 

*  Wilson  V.  New  York,  1  Denio,  595. 

« Whart.  Legal  Max.  No.  98;  New  York  v.  L<yrd,  17  Wend.  285. 
21 


322  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

the  principles  of  the  Constitution  the  public  would  be  liable  for 
the  damages  inflicted  ;  but  in  any  case  the  theory  that  a  municipal 
corporation  has  the  right  in  prosecuting  a  scheme  of  improvements 
to  appropriate  without  compensation,  either  designedly  or  inad- 
vertently, the  permanent  or  occasional  occupation  of  a  citizen's 
property,  even  though  for  the  public  benefit,  cannot  be  supported 
upon  the  principle  referred  to.  If  the  use  of  such  property  is  re- 
quired for  public  purposes,  the  Constitution  points  out  the  way  in 
which  it  may  be  acquired  when  there  is  no  such  imminency  in  the 
danger  apprehended  as  precludes  a  resort  to  the  remedy  provided, 
and  the  only  mode  by  which  it  can  be  lawfully  taken  in  such  cases 
is  that  afforded  by  the  right  of  eminent  domain. 

The  decision  in  Vincennes  v.  Bichards,  23  Ind.  381,  turned 
upon  this  distinction  between  incidental  injury  and  the  actual  in- 
vasion of  the  absolute  right  of  property.' 

Seymour  v.  Cummins,  119  Ind.  148,  5  L.  R.  A.  126,  was  an 
action  for  damages  for  the  construction  of  an  open  ditch  on  the 
ways  or  streets  on  two  sides  of  a  residence  property  owned  by  the 
decedent  within  the  City  of  Seymour.  The  manner  in  which  the 
decedent's  real  estate  was  depreciated  in  value,  rendered  uninhab- 
itable, and  ingress  and  egress  to  and  from  it  was  obstructed,  was 
by  a  ditch  ten  feet  wide  and  three  feet  deep;  the  ditch  was  dug  so 
near  to  the  line  of  his  lot  that  the  soil  of  his  lot  from  time  to  time 
fell  into  the  ditch;  and  the  corrupt,  filthy  and  poisonous  water  from 
the  swamp  and  other  surface  water  and  sewage  were  turned  in  from 
time  to  time  by  the  city,  and  also  sewage  from  woolen-mills  is 
turned  into  the  ditch,  and  the  fall  was  insufficient  to  cany  it  off,  and 
it  remained  in  the  ditch  as  stagnant  water,  and  poisonous  and  un- 
wholesome vapors  and  smells  permeated  and  rendered  impure  the 
air  over  his  lot,  and  within  his  residence  property,  and  malaria  and 
disease  were  generated  thereby,  and  the  house  and  premises  were 
rendered  untenantable.  The  ditch  was  constructed  in  1877,  and  had 
ever  since  been  maintained  by  the  city  in  the  same  condition,  and 
it  was  a  permanent  one,  and  was  not  the  natural  outlet  for  such 

'  See  AsJiley  v.  Port  Huron,  35  Mich.  296;  JVevins  v.  Peoria,  41  111.  502;  Ati- 
rora  v.  Oillett,  56  111.  132;  Aurora  v.  Reed,  57  111.  30;  Alton  v,  Hope,  68 
111.  167;  Jasksonville  v.  Lambert,  62  111.  519;  Pettigreto  v.  Evansville,  25 
Wis.  223;  Merrifieldv.  Worcester,  110  Mass.  216;  Locks  &  Canals  y.  Lowell, 
7  Gray,  223;  Franklin  v.  Fisk,  13  Allen,  211;  Haskell  v.  New  Bedfordy 
108  Mass.  208. 


Chap.  XIV.]  NEGLIGENCE    IN   ADOPTING    PLAN.  323 

drainage,  which  should  have  been  by  underground  sewerage,  and 
not  by  an  open  drain.  The  injury,  it  was  evident,  resulted,  Tiot 
from  the  manner  in  which  the  work  was  performed,  and  ditch 
constructed,  but  the  action  was  for  damages  sustained  by  reason  of 
the  ditch  itself,  located  where  it  was,  for  the  drainage  of  the  pond^ 
surface  water  and  sewage,  and  the  injury  resulting  from  the  con- 
struction of  a  ditch  where  this  was  located,  and  by  reason  of  its  be- 
ing maintained  as  an  open  ditch,  and  allowing,  stagnant,  corrupt, 
filthy  and  poisonous  waters  to  remain  therein,  and  obstructing 
plaintiif's  ingress  and  egress  to  and  from  his  premises,  and  causing 
the  soil  of  his  lot  to  cave  and  fall  into  the  ditch,  and  it  was  decided 
that  for  such  injury  the  city  was  liable.' 

It  was  said  that  a  municipal  corporation  has  general  supervision 
of  the  drainage  of  the  city,  and  is  liable  for  defective  plans  for 
drainage.  If  a  city  adopt  a  proper  plan  of  drainage,  and  let 
a  contract  for  the  doing  of  the  work  and  construction  of  the 
drain,  the  contractor  to  use  his  own  method  and  means  for  the 
construction  of  the  drain,  and  damages  result  by  reason  of  the 
negligence  of  the  contractor  in  doing  the  work,  the  city  would 
not  be  liable  f  but  when  the  city  adopts  a  plan  of  sewerage  or 
drainage,  and  contracts  for  its  construction,  and  it  is  constructed 
in  accordance  with  the  plan  so  adopted  by  the  city,  and  injury 
is  caused  to  a  property  owner  by  reason  of  the  negligence  of 
the  city  in  devising  the  plan  and  the  construction  of  improper 
drainage  creating  a  nuisance,  obstructing  private  ways  or  public 
ways  in  which  the  pi'operty  owner  has  a  special  interest,  the  city 
is  liable.  The  answer  in  this  case,  it  appears,  did  not  aver  but  that 
the  contractor  did  the  work  and  constructed  the  drain  on  the  line 
and  in  the  manner  which  the  city  directed  and  contracted  it  should 
be  constructed,  nor  did  it  controvert  the  fact  that  the  city  had 
maintained  it  in  such  manner,  nor  that  all  the  injuries  resulted  to 
the  plaintiff  which  were  alleged.     Indeed,  it  controverted  no  aver- 

'  See  also  Evansville  v.  Decker,  84  Ind.  325;  Itosn  v.  Thompson,  78  Ind.  90; 
Terre  Haute  v.  Hudnut,  112  Ind.  543,  11  West.  Rep.  333;  Wabash,  St.  L. 
&  P.  B.  Co.  V.  Farver,  111  Ind.  195,  9  West.  Rep.  621. 

^Lancaster  Ave.  Imp.  Co.  v.  Rhoads,  116  Pa.  377,  8  Cent.  Rep.  214.  See 
Painter  V.  Pittsburgh,  AQ  Pa.  213;  Susquehanna  Depot  v.  Simmons.  112 
Pa.  384.  3  Cent.  Rep.  140;  Reed  v.  AUer/heny,  79  Pa.  300;  Erie  v.  Caulkins, 
85  Pa.  247;  Hunt  v.  Pennsylvania  R.  Co.  51  Pa.  475;  Allen  v.  Willard,  57 
Pa.  374. 


324  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

ment,  but  sought  to  avoid  liability  on  the  ground  that  the  ditch  was 
constructed  under  a  contract  with  a  third  party.  But  it  was  held 
that  a  city  cannot  avoid  liability  in  this  way.'  A  system  of  sewer- 
age is  largely  within  the  discretion  of  the  city  government.  It  can- 
not devise,  as  we  have  seen,  a  system  which  will  involve  the  actual 
taking  of  property  without  compensation,  nor  can  it  create  a  nui- 
sance, but  short  of  this  it  may  in  good  faith  and  with  a  reasonabl}' 
enlightened  knowledge  exercise  its  discretion,  and  it  is  not  neces- 
sary that  the  system  of  sewerage  adopted  shall  extend  to  all  parts 
of  the  city.  What  sewerage  is  necessary  for  the  w^elfare  of  the 
city  and  health  of  its  inhabitants  is  a  political  question  and  to  be 
determined  by  the  legislative  authority  of  the  city  under  its  grant 
of  power." 

» See  Denver  v.  Rhodes,  9  Colo.  554;  Wood,  Mast,  and  S.  p.  605,  §  13;  Wood, 

Nuis.  81. 
^St.  Louis  Bridge  Co.  v.  People,  128  111.  422,  15  West.  Rep.  155. 


I 


CHArXER  XV. 

NEGLIGENCE  OF  TOWI^S  AND  CITIES  IN  CONTROL  OF  SURFACE 

WATER. 

Sec.  32.    Under  What  Circumstances  City  will  be  Liable. 

Sec.  33.   The  Rule  of  Liability  in  Neio  England. 

Sec.  34.  Limited  Liability  of  Unincorporated  Town  or  Village. 

Section  32.— Under  What  Circumstances  City  will 

he  Liable. 

From  the  foregoing  review  it  is  evident  that,  where  the  city 
plan  of  street  and  sewer  improvement,  faithfully  carried  out,  re- 
sults in  an  unlawful  entry  upon  the  premises  of  another,  causing 
injury  to  his  property,  which  from  its  nature  is  liable  to  be  con- 
tinuous, but  is  remediable  by  a  change  of  plan  or  by  the  adoption 
of  prudential  measures,  the  city  will  be  liable,  unless  such  change 
of  plan  or  measures  of  protection  are  adopted  with  reasonable 
promptness  on  notice  of  the  injury.  Or,  if  the  injury  is  one  to  be 
reasonably  anticipated  or  discoverable  by  the  exercise  of  due  care, 
actual  notice  is  not  necessary.' 

A  city  is  liable  if  it  undertakes  to  collect  water  in  one  channel 
and  wrongfully  pours  it  upon  another's  land.*  This  principle  has 
been  uniformly  applied  to  the  acts  of  such  corporations  in  con- 
structing streets,  sewers,  drains  and  gutters,  whereby  the  surface 
water  of  a  large  territory  which  did  not  naturally  flow  in  that  di- 
rection was  gathered  into  a  body  and  was  precipitated  upon  the 
premises  of  an  individual,  occasioning  damages  thereto.*  A  mu- 
nicipal corporation  has  no  more  right  than  a  private  person  to 

^Seifert  v.  Brooklyn,  101  N.  Y.  136,  2  Cent.  Rep.  135;  Baltimore  &  P.  R.  Co 
V.  Fifth  Baptist  Church,  108  U.  S.  317,  27  L.  ed.  739;  Van  Pelt  v.  Daven- 
port, 42  Iowa,  308;  Fort  Wayne  v.  Coombs,  107  Ind.  75,  5  West.  Rep.  229. 

*Lipes  V.  Hand,  104  Ind.  503,  2  West.  Rep.  314;  Emnsville  v.  Decker,  84  Ind. 
325,  43  Am.  Rep.  86;  Weis  v.  Madison,  75  Ind.  241,  39  Am.  Rep.  135  ; 
Cairo  &  V.  B.  Co.  v.  Stevens,  73  Ind.  278;  Templeion  v.  Voshloe,  72  Ind. 
134;  Bice  v.  Emiisville,  108  Ind.  7,  6  West.  Rep.  244. 

'Byrnes  v.  Cohoes,  67  N.  Y.  204;  Bastable  v.  Syracuse,  8  Hun,  587,  72  N.  Y. 
64;  JSfoonnn  v.  Albany,  79  N.  Y.  475;  Bench  v.  Elm.ira,  22  Hun,  158; 
Field  V.  West  Orange,  36  N.  J.  Eq.  120,  29  Alb.  L.  J.  397. 


326  niPOSED  DUTIES,  PERSONAL.  [Part  II. 

collect  surface  water  into  drains  and  to  cast  it  in  a  volume  upon 
the  land  of  an  adjoining  owner,  although  it  formerly  flowed  over 
such  lands,'  "Where  a  municipality  puts  into  execution  a  scheme 
of  improvement  by  which  surface  water  collected  from  a  large 
area  is  prevented  from  following  the  grades  of  the  streets,  and  is 
carried  by  artificial  means  from  where  it  would  otherwise  be  dis- 
charged, and  made  to  flow  on  to  the  land  of  one  person  in  ease  of 
the  lands  of  others,  there  an  actionable  wrong  is  committed." 
Where  the  natural  flow  of  surface  water  and  drainage  was  ob- 
structed, the  city  is  liable  for  the  damage  caused  thereby."  A 
municipal  corporation  is  liable  to  one  upon  whose  lands  it  con- 
ducts surface  water  wrongfully  diverted  from  its  natural  channel,* 
and  for  discharging  its  drainage  or  sewage  upon  private  property.'" 
So  if  quantities  of  earth  were  thrown  upon  and  permitted  to  con- 
tinue, so  that,  in  times  of  rain,  mud  and  water  were  driven  on 

^Rycldicki  v.  St.  Louis,  98  Mo.  497,  4  L.  R.  A.  594. 

^Miller  v.  Morristoicn  (N.  J.  June  30,  1890)  20  Atl.  Rep.  61. 

^Lyncli  V.  New  York,  76  N.  Y.  60;  Seifert  v.  Brooklyn,  101  N.  Y.  136,  2  Cent. 
Rep.  136,  137;  New  York  v.  Furze,  3  Hill,  612;  Bartony.  Syracuse,  37 
Barb.  292;  Nims  v.  Troy,  59  N.  Y.  500. 

^Clark  Y.  Rochester,  43  Hun,  271;  Evansvillev.  Decker,  84  Ind.  325;  Craw- 
fordsville  v.  Bond,  96  Ind.  236;  Rice  v.  Evansville,  108  Ind.  7,  6  West.  Rep. 
242;  Terre  Haute  v.  Hudnut,  112  Ind.  542-548,  11  West.  Rep.  333;  Pyev. 
Mankato,  36  Minn.  373-  Mills  v.  Brooklyn,  32  N.  Y.  489;  Lynch  v.  New 
York,  76  N.  Y.  60;  O'Brien  v.  St.  Paul,  25  Minn.  332;  Ashley  v.  Port 
Huron,  35  Mich.  296;  Bastable  v.  Syracuse,  8  Hun,  587,  72  N.  Y.  64;  Smith 
V.  Atlanta,  75  6a.  110;  Edmondson  v.  Moherly,  98  Mo.  523;  Jutte  v.  Hughes, 
67  N.  Y.  268;  Moran  v.  McGlearns,  63  Barb.  185;  Waffle  v.  New  York  C. 
R  Co.  58  Barb.  513;  Brayton  v.  Fall  River,  113  Mass.  218;  AttyOen.  v. 
Leeds  Corp.  L.  R.  5  Ch.  583;  Weet  v.  Brockport,  16  N.  Y.  161,  note; 
Haskell  v.  New  Bedford,  108  Mass.  208;  Troy  v.  Coleman,  58  Ala.  570; 
Simmer  v.  St.  Paul,  23  Minn.  408;  Rochester  White  Lead  Go.  v.  Rochester, 
3  N.  Y.  466;  Richardson  v.  Boston,  60  U.  S.  19  How.  270,  15  L.  ed.  642; 
Perry  Y.Worcester,  6  Gray,  544;  Sleight  v.  Kingston,  11  Hun,  594;  Locks 
&  Canals  v.  Lowell,  7  Gray,  223;   Union  Springs  v.  Jones,  58  Ala.  654. 

*Sidlivanv.  Phillips,  110 Ind.  320,  9  West.  Rep.  49;  Ricev.  Flint,  67 Mich.  401; 
Pyev.  Mankato,  36  'Kinn.^l^;  LeirenthalY.  New  York,  61  Barb.  511,  5  Lans. 
532;  Woodicard  v.  Worcester,  121  Mass.  245;  Ruck  v.  Williams,  3  Hurl.  &  N. 
308;  Jacksonville  v.  Lambert,  62  111.  519;  Butler  v.  Thomasville,  74  Ga.  570; 
Noonan  v.  Albany,  79  N.  Y.  475;  Byrnes  v.  Cohoes.  67  N.  Y.  204;  Rich- 
ardson V.  Boston,  60  U.  S.  19  How.  270,  15  L.  ed.  642;  Sleight  v.  Kingston, 
11  Hun,  594;  Barton  v.  Syracuse,  37  Barb.  292,  36  N.  Y.  54;  Bastable  v. 
Syracuse,  8  Hun,  587,  72  N.  Y.  64;  Beach  v.  Elmira,  22  Hun,  158;  Rochester 
White  Lead  Co.  v.  Rochester,  3  N.  Y.  466;  Perry  v.  Worcester,  6  Gray,  544; 
Ashley  v.  Port  Huron,  35  Mich.  296;  Story  v.  Neio  York  Elevated  R.  Co.  90 
N.  Y.  122;  Haskell  v.  Neio  Bedford,  108  Mass.  208 ;  Stock  v.  Boston,  149  Mass. 
410-  Atty-Oen.  v.  Leeds  Corp.  L.  R.  5  Ch.  583;  Field  v.  West  Orange,  36 
N.  J.  Eq.  120,  29  Alb.  L.  J.  397;  Hitchins  v.  Frostburg,  68  Md.  100,  10 
Cent.  Rep.  539;  Rowe  v.  Portsmouth,  56  N.  H.  291. 


Chap.  XY.]       UNDKK    WHAT    CIRCUMSTANCES    CITY    LIABLE.  327 

plaintiff's  messuage,  he  was  held  entitled  to  sue  the  corporation 
for  damages.' 

While  mere  neglect,  under  ordinayy  circumstances,  to  order  an 
improvement  to  be  made,  will  not  create  liability  where  there  is 
any  discretion  in  the  matter  reposed  in  the  city,  yet  any  plan 
adopted  and  entered  upon,  which  will  create  a  public  or  private 
nuisance,  unless  certain  additional  improvements  are  made,  will 
render  the  city  liable  for  a  neglect  to  make  the  latter.^  It  will  be 
liable  also  where  the  result  of  the  work  is  the  creation  of  a  public 
or  private  nuisance. 

Although  a  municipal  corporation  has  the  right,  under  its 
charter,  to  establish  a  system  of  grading  and  drainage,  yet  this 
should  be  done  so  that  it  will  not  prove  a  nuisance  to  the  citizens.' 
A  municipal  corporation  has  no  more  authority  than  an  individual 
to  gather  the  surface  water  from  its  lands  or  streets  into  an  arti- 
licial  channel  and  discharge  it  upon  the  lands  of  another ;  nor  has 
it  any  immunity  from  legal  responsibility  for  creating  or  main- 
taining nuisances.*  The  outfall  of  a  sewer  must  be  so  constructed 
that  it  will  not  become  a  private  or  a  public  nuisance.*  A  gen- 
eral grant  of  power  in  a  municipal  charter  to  establish  a  sewer 
system  affords  no  justification  for  the  action  of  the  authorities  in 
unnecessarily  exercising  the  power  so  as  to  create  a  nuisance  in- 
jurious to  private  rights  of  property.'  If  it  drain  water  into  a 
private  canal  to  its  injury,'  or  into  a  private  dock  to  obstruct  nav- 
igation,' or  into  a  mill  race,*  it  wall  be  liable.     The  same  liability 

^Farrell  v.  London,  12  U.  C.  Q.  B.  343.  See  also  Perdue  v.  Chinquacoumj 
Twp.  25  U.  C.  Q.  B.  61. 

"^Phinizy  v.  Augusta,  47  Ga.  263;  Byrnes  v.  Cohoes,  67  N.  Y.  204;  Seifert  y 
Brooklyn,  101  N.  Y.  136,  3  Cent.  Rep.  135;  Crawfordsville  v.  Bond,  96 
Ind.  2b6;  Ellis  v.  Iowa  City,  29  Iowa,  229;  Aurora  v.  Love,  93  111.  521; 
Cummins  v.  Seymour,  79  lud.  491. 

^SmitJi  V.  Atlanta,  75  Ga.  110. 

*Weet  V.  Brockport,  16  N.  Y.  161,  172,  note;  Byrnes  y.  Cohoes,  67  N.  Y.  204; 
Haskell  Y.  New  Bedfcrrd,  108  Mass.  208;  Atty-Gen.  v.  Leeds  Corp.  L  R  5 
Ch.  583;  Seifert  v.  Brooklyn,  101  N.  Y.  136.  2  Cent.  Rep.  135. 

^Franklin  Wharf  Co.  v.  Portland,  67  Me.  46,  24  Am.  Rep.  1 ;  Haskell  v.  New 
Bedford,  108  Mass.  214;  Brayton  v.  Fall  River,  113  Mass.  218,  18  Am 
Rep.  470;  State  v.  Portland,  74  Me.  268,  43  Am.  Rep.  586, 

^Edmondson  v.  Moberly,  98  Mo.  523. 

"^Ijocks  &  Canals  v.  Lowell,  7  Gray,  228. 

^  Clark  V.  Peckham,  9  R.  I.  458;  Haskell  v.  New  Bedford,  108  Mass.  208. 

^Columbus  V.  Hydraulic  Woolen  Mills  Co.  33  Ind.  435;  Elgin  Hydraulic  Co  v 
Elgin,  74  111.  433. 


328  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

will  follow  where,  after  the  completion  of  the  attempted  improve- 
ment, actual  use  demonstrates  that  its  insufficiency  for  the  purpose 
intended  causes  injiiry  to  the  property  of  the  citizen,  where  notice 
of  its  failure  and  this  result  is  shown  to  have  been  given  to  the 
city  officials  having  charge  of  such  matters,  or  that  a  sufficient 
time  has  elapsed  since  such  failure  was  demonstrated  to  charge  the 
city  with  notice. 

A  municipality  is  liable  for  the  flooding  of  private  property  by 
an  insufficient  sewer,  provided  it  had  notice  of  the  defect.'  In 
Fort  Wayne  v.  Coombs^  107  Ind.  75,  5  West.  Rep.  229,  such  no- 
tice is  held  unnecessary,  where  the  neglect  had  continued  for  two 
years.  A  still  shorter  period  has  often  been  held  sufficient  to 
charge  a  city  with  notice  of  defective  work.' 

If  in  the  exercise  of  its  discretionary  powers  a  municipal  corpo- 
ration is  negligent,  it  is  liable  to  the  same  extent  as  any  other 
corporation,  or  as  a  public  officer  or  as  an  individual,  for  a  similar 
injury.^ 

Liability  will  also  be  incurred  for  a  failure,  resulting  in  an  in- 
jury to  property,  to  carry  out  with  reasonable  care  the  plan 
adopted.''  The  work  of  constructing  gutters,  drains  and  sewers 
is  ministerial ;  and  when,  as  is  usually  the  case,  the  undertaking  is 
a  corporate  one,  the  corporation  is  responsible  in  a  civil  action  for 
damages  caused  by  the  careless  or  unskillful  manner  of  perform- 
ing the  work.'  Although  a  municipal  corporation  is  not  liable 
for  failure  to  exercise  discretionary  power  to  build  culverts  and 
sewers,  if  it  undertakes  to  exercise  that  power  it  is  bound  to  exer- 
cise reasonable  care  in  the  execution  of  the  work,  and  is  liable  for 
damages  occasioned  by  the  negligent  construction  of  such  work,* 

^Earrigan  v.  Wilmington  (Del.  Feb.  21,  1888)  11  Cent.  Rep.  251;  HitcMns  v. 
Frostburg,  fi8  Md.  100,  10  Cent.  Rep.  539. 

^Madison  y.  Baker,  103  Ind.  4,  1  West.  Rep.  116;  Cummins  v.  Seymour,  7& 
Ind.  491. 

^Bastable  v.  Syracuse,  8  Hun,  587,  72  N.  Y.  64;  Hickolc  v.  Plattshurqh,  16  N. 
Y.  161;  Robinson  v.  Chamberlain,  34  N.  Y.  389;  Moran  v.  McClearns,  63 
Barb.  195;  Neto  York  v.  Furze,  3  Hill,  612;  Rochester  White  Lead  Co.  v. 
Rochester S'N.YAGG;  Babcock  v. Buffalo,  1  Sheld.  317,  56N.Y.  268;  Indian- 
apolis V.  Huffer,  30  Ind.  235;  Barnes  y.  District  of  Columbia,  91  U.  S.  540, 
23  L.  ed.  440;  Montgomery  v.  Gilmer,  33  Ala.  116;  Logaiispori  v.  Wright, 
25  Ind.  512;  Wallace  v,  Muscatine,  4  Greene  (Iowa)  373;  Barton  v.  Syra- 
cuse, 37  Barb.  292,  36  N.  Y.  54. 

^Denver  v.  Rhodes,  9  Colo.  554. 

^Johnston  v.  District  of  CoUmbia,  118  U.  S.  19,  30  L.  ed.  75. 

^Frostburg  v.  HitcMns,  70  Md.  56. 


Chap.   XV.]       UNDER    WHAT   CIRCUMSTANCES    CITY    LIABLE.  329 

While  a  city  or  town  is  not  liable  in  tort  for  injuries  caused  bj  the 
reasonable  planning  of  a  sewer  laid  out  by  the  board  of  aldermen,  it 
is  liable  for  the  negligence  of  its  servants  in  carrying  out  the  plan 
in  constructing  the  sewer.'  Where  the  duty  as  respects  drains 
and  seM'^ers  ceases  to  be  judicial,  or  quasi  judicial,  and  becomes 
ministerial,  then,  although  there  be  no  statute  giving  the  action,  a 
municipal  corporation  is  liable  for  the  negligent  discharge  or  the 
negligent  omission  to  discharge  such  duty,  resulting  in  an  injury 
to  others.^  A  municipality  constructing  drains  and  sewei-s  when 
under  no  obligation  to  do  so  is  liable  for  damages  M'here  the  woi'k 
is  performed  negligently  or  the  management  thereof  is  negligent.* 
If  the  city  caused  the  sewer  to  be  constructed,  and  adopted  it  and 
used  it,  it  can  make  no  difference  who  constructed  it',  or  controlled 
its  construction,  or  owned  the  land  on  which  it  was  built.  It  is 
enough  that  the  city  adopted  it  and  used  it.* 

Whatever  may  be  the  duty  of  the  municipal  body  in  providing 
sewerage  and  a  proj^er  channel  for  the  passage  of  water,  if  the 
city  undertakes  the  building  of  a  sewer,  it  becomes  its  duty  to 
keep  it  in  proper  repair,  and  it  is  liable  for  any  neglect  in  its 
proper  maintenance,  or  for  any  changes  or  alterations  made  by  the 
city  or  its  authority,  or  with  the  knowledge  of  the  city  officials, 
in  its  structure,  by  means  of  which  the  waters  are  obstructed  in 
their  passage,  and  damage  ensues  to  others." 

No  notice  to  a  city  of  the  defect  in  a  sewer  is  necessary  to  fix 
its  liability.  Its  duty  to  keep  its  sewers  in  repair  is  not  performed 
by  waiting  to  be  notified  by  citizens  that  they  are  out  of  repair 
and  repairing  them  only  when  the  attention  of  the  officials  is  called 

^  Stock  V.  Boston,  149  Mass.  410. 

^Barton  v.  Syracuse,  36  N.  Y.  54,  37  Barb.  293;  Ghild  v.  Boston,  4  Allen,  41; 
Emery  \.  Lowell,  104  Mass.  13;  McGregor  v.  Boyle,  34  Iowa,  208.  Com- 
pare Dermont  v.  Detroit,  4  Mich.  435;  Montgomery  v.  Gilmer,  33  Ala.  116; 
Gilmer  V.  Montgomery,  26  Ala.  665;  Jones  v.  Neio  Haven,  34  Conn.  1- 
Logansport  v.  Wright,  25  Ind.  512;  2  Dillon,  Mun.  Corp.  930. 

^Philadelphia,  W.  &  B.  R.  Co.  v.  Davis,  08  Md.  281,  10  Cent.  Rep.  553. 

*  Aurora  v.  Colshire,  55  Ind.  484;  Fort  Wayne  v.  Coombs,  107  Ind.  75,  5  West 
Rep.  229. 

^Rochester  White  Lead  Co.  v.  Rochester,  3  N.  Y.  463;  Barton  v.  Syracuse,  37 
Barb.  292,  affirmed,  36  N.  Y.  54;  McCarthy  v.  Syracuse,  46  N.  Y.  194; 
Eines  v.  Lockport,  50  N.Y.  236;  New  York  v.  Furze,  3  Hill,  612;  Mills  v' 
Brooklyn,  32  N.Y.  489;  Ft.  Wayne  v.  Cooinbs,  107  Ind.  75,  5  West.  Rep. 
229;  Emery  V.  Lowell,  104  Mass.  15;  Child  y.  Boston,  4  Allen,  41;  Blood 
V.  Bangor,  66  Me.  154;  Darling  v.  Bangor,  68  Me.  llO;  Estes  v.'china 
56  Me.  407. 


330  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

to  the  damage  they  have  occasioned  by  having  become  dilapidated 
or  obstructed,  but  it  involves  the  exercise  of  reasonable  care  and 
watchfulness  in  ascertaining  their  condition  from  time  to  time  and 
preventing  them  from  becoming  dilapidated  or  obstructed.' 

While  a  municipal  corporation  cannot  be  compelled  to  provide 
waterways  of  sufficient  capacity  to  carry  off  all  surface  waters 
likely  to  accumulate  in  the  streets,  yet  such  as  the  city  has  pro- 
vided it  is  bound  to  keep  in  repair  and  free  from  obstructions,  so 
that,  up  to  their  original  capacity,  they  shall  be  efficient."  If  the 
sewer  is  negligently  permitted  to  become  obstructed  or  filled  up 
so  that  it  causes  the  water  to  back-flow  into  cellars  connected  with 
it,  there  is  a  liability  therefor  on  the  part  of  the  municipal  cor- 
poration having  the  control  of  it.'  Although  a  municipal  cor- 
poration is  not  liable  for  damages  resulting  from  a  lawful  exercise 
of  its  discretionary  power  to  plan  and  construct  sewers  and  other 
improvements,  in  the  first  instance,*  or  for  consequential  injury, 
such  as  the  flowing  of  waste  water  upon  a  citizen's  land,^  or 
for  not  providing  sufficient  sewerage  for  the  draining  of  the 
premises  of  a  resident,'  yet,  having  undertaken  their  construction, 
it  is  liable  for  any  special  injury  sustained  by  others  from  the 
negligent  or  unskillful  exercise  of  its  authority,  or  the  failure  to 
keep  them  in  repair  or  free  from  obstruction.' 

^McCarthy  v.  Syracuse,  46  N.T.  194. 

^Denver  v.  Rhodes,  9  Colo.  554. 

^Barton  v.  Syracuse,  37  Barb.  273,  36  N.  Y.  54;  New  York  v.  Furze,  3  Hill, 
613;   Wilson  v.  New  York,  1  Denio,  595;  Mills  v.  Brooklyn,  32  N.  Y.  489. 

*Fair  V.  Philadelphia,  88  Pa.  209,  33  Am.  Rep.  455;  Mills  v.  Brooklyn,  33 
N  Y  489;  Smith  v.  NeiD  York,  66  N.  Y.  295,  23  Am.  Rep.  53;  (7a?T  v. 
Northern  Liberties.  35  Pa.  324;  Grant  v.  Erie,  69  Pa.  420,  8  Am.  Rep.  272. 

^Vincennes  v.  Richards,  23  Ind.  381. 

^Mills  V.  Brooklyn,  32  N.Y.  489;  Garr  v.  Northern  Liberties,  35  Pa.  324. 

''Do/iohue  V.  Neio  York,  3  Daly,  65;  Rochester  White  Lead  Co.  v.  Rochester,  3 
N.Y.  464;  Barton  v.  Syracuse.  37  Barb.  292,  36  N.  Y.  54;  Nims  v.  Troy, 
59  N.  Y.  500;  McCarthy  \.  Syracuse,  46  N.  Y.  194;  Leicenthalv.  New 
York,  61  Barb.  511,  5  Lans.  532;  Reeves  v.  Toronto,  21  U.  C.  Q.  B.  157; 
Clark  V.  Beckham,  9  R.  I.  455;  Bixon  v.  Baker,  65  111.  518;  Logansport  v. 
Wright,  25  Ind.  513;  Nem  York  v.  Furze,  3  Hill,  612;  Wilson  v.  New  York, 
1  Denio,  601;  Hutson  v.  New  York,  9  N.  Y.  163;  Meares  v.  Wilmington,  9 
Ired.  L.  73;  Hortonv.  Nashville,  4  Lea,  39,  40  Am.  Rep.  4;  Mills  v.  Brook- 
lyn, 32  N.  Y.  489;  Carr  v.  Northern  Liberties,  35  Pa.  324;  Atchison  v. 
Challiss,  9  Kan.  603;  Judge  v.  Meriden,  38  Conn.  90;  McGregor  v.  Boyle, 
34  Iowa,  268;  Denver  v.  Gapeli,  4  Colo.  25,  34  Am.  Rep.  63;  Eastman  v. 
Meredith.  36  N.  H.  284;  Lansing  v.  Toolan,  37  Mich.  152;  Marquette  v. 
Gleary,  Id.   296;  Darling  v.  Bangor,  68  Me.  112. 


■Chap.  Xy.]       UNDER    WHAT    CIKCUMSTi  ■'.yCES    CITY    LIABLE.  331 

After  sewers  are  constructed,  the  di  ty  of  tlie  city  to  keep  them 
in  repair  is  ministerial,  and  for  an  omissior.*-  to  perform  that  duty 
it  is  liable.'  The  city  is  liable  for  an  injury  cpcurring  through 
its  neglect  to  repair  a  sewer  after  a  lapse  of  tiin^  warranting  the 
presumption  of  notice  of  the  defect.'  The  lav>^*requires  it  to 
use  ordinary  care  and  watchfulness  to  prevent  suea  ii^jprovement 
from  falling  into  gradual  decay.  It  must  periodically  inspect  its 
«ewers  for  the  protection  of  the  public,  and  it  cannot  relieve  it- 
self from  such  duties  by  the  manner  in  which  it  constrncts  them.' 
But  where  there  has  been  no  negligence,  as  where  the  choking 
with  sand  of  a  sewer  was  unexpected,  there  is  no  liability.'* 

Where  a  sewer  has  been  adopted  and  used  b}'  a  city,  and  its 
citizens  have  been  expressly  or  implicitly  authorized  to  connect 
their  drains  with  it,  if  the  city  negligently  permits  it  to  get  out  of 
repair,  it  must  pay  the  damages  thereby  caused  to  one  so  using  it 
who  is  not  himself  in  fault.*  A  municipal  corporation  is  liable 
for  negligence  in  the  ministerial  duty  to  keep  its  sewers  in  repair 
as  respects  persons  whose  estates  are  connected  therewith  by  priv- 
ate drains,  in  consequence  of  which  such  persons  sustain  injuries 
which  would  have  been  avoided  had  the  sewers  been  kept  in  a 
proper  condition.' 

Under  the  decisions  in  some  of  the  States,  where  the  result  of 
the  attempted  improvement  creates  a  nuisance,  and  there  has  been 
want  of  care  in  the  adoption  of  the  plan,  the  imperfection  in  the 
conception  of  which  causes  a  nuisance,  this  negligence,  considered 
as  a  want  of  the  exercise  in  good  faith  of  the  discretion,  properly 
informed,  which  it  was  the  duty  of  the  council  to  use,  will  be  as- 
signed as  the  ground  of  liability.     It  may  be  true  that  the  liability 

^Uines  v.  Lockport,  50  N.  Y.  236;  Seifert  v.  Brooklyn,  101  N.Y.  186.  2  Cent 

Rep.  136,  138;  Barton  v.  Syracuse,  37  Barb.  292,  36  N.  Y.  54. 
^McCarthy  v.  Syracuse,  46  N.  Y.  194;  Seifert  v.  Brooklyn,  101  N.  Y.  136,  2 

Cent.  Rep.  135. 
^Indianapolis  v.  Scott,  72  Ind.  196;  Norristown  v.  Moyer,  67  Pa.  355;  Rapho 

Twp.  V.  Moore,  68  Pa.  404;  Todd  v.  Troy,  61  N.  Y.  506;  Logansportv. 

Justice,  74  Ind.  378;  Ft.  Wayne  v.  Coombs,  107  Ind.  75,  5  West.  Rep.  230. 
*8mith  V.  New  York,  66  N.  Y.  295,  4  Hun,  627;    Wheelers.  Worcester,   10 

Allen,  591. 

*Child  V.  Boston,  4  Allen,  41;  Barton  v.  Syracuse,  37  Barb.  292,  36  N.  Y.  54, 

Montgomery  v.  Gilmer,  33  Ala.  116. 
*Child  V.  Boston,  4  Allen,  41;  Lloyd  v.  New  York,  5   N.  Y.  369;  Kra?i2  v 

Baltimore,  64  Md.  491,  3  Cent.  Rep.  629. 


I 
332  imposji,*?  duties,  personal.  [Part  II. 

would  follow,  although  r.pon  a  different  ground,  where  the  result 
was  a  mere  invasion^!'  the  rights  of  property.' 

All  of  the  au/horities,  it  is  believed,  agree  that  the  adoption 
and  execution  cv*^a  plan  of  improvement  that  practically  results 
in  the  approiK  iation,  destruction  or  material  physical  injury  of 
private  prc^-jert}^,  without  resort  to  the  legal  methods  of  condem- 
nation and  compensation  for  such  property,  will  render  the  city 
liable. 

Municipal  corporations  have  quite  invariably  been  held  liable 
for  damages  occasioned  by  acts  resulting  in  the  creation  of  public 
or  private  nuisances,  or  for  an  unlawful  entry  upon  the  premises 
of  another,  whereby  injury  to  his  property  has  been  occasioned.* 

But  to  create  liability  the  act  done  must  be  without  authority, 
or  be  improperly  done.  A  municipal  corporation  is  not  liable  for 
damage  to  private  property,  unless  the  act  complained  of  was 
without  authority  or  against  law,  or  was  improperly  or  wantonly 
executed.^  It  is  not  liable  where  a  sewer  commissioner,  without 
authority,  conducts  the  water  of  a  sewer  onto  private  land.*  A 
town  is  not  liable  for  damage  done  to  adjoining  premises  by  water 
leaking  from  a  flume  which,  in  excess  of  its  authority,  it  had  per- 
mitted to  be  built  in  the  streets."  A  city  is  not  liable  for  an  in- 
jury to  private  property  from  the  breaking  of  a  public  sewer  from 
faulty  construction,  unless  notified  of  such  faulty  constraction." 

It  is  not  liable  for  an  overflow  caused  by  an  unusual  rainfall 
that  could  not  have  been  reasonably  expected,^  or  for  the 
damage  caused  to  private  property  situated  within  its  corporate 
limits,  through  a  sudden,  unexpected  overflow  of  a  river.'     But 

^Indianapolis  v.  Huffer,  30  Ind.  235;  Rochester  White  Lead  Go.  v.  Rochester, 
3  N.  Y.  463;  North  Vernon  v.  Voegler,  103  Ind.  314,  1  West.  Rep.  566; 
Chicago  v.  Gallagher,  44  111.  295;  Gould  v.  Topeka,  32  Kan.  485;  Prideaux 
V.  MineraJ.  Point,  43  Wis.  513;  Wilson  v.  Atlanta,  60  Ga.  473;  Furguson 
V.  Davis  Go.  57  Iowa,  601;  Rice  v.  Evansville,  108  Ind.  7,  6  West.  Rep. 
24'^.  58  Am.  Rep.  22;  Helena  v.  Thompson,  29  Ark.  569;  Detroit  v.  Gorey^ 
9  Mich.  165;  Atchison  v.  Ghallis,  9  Kan,  612;  Philadelphia  &  R.  R.  Go. 
V.  Anderson,  94  Pa.  351. 

''Baltimore  &  P.  R.  Go.  v.  Fifth  Baptist  Ghurch,  108  U.  S.  317,  27  L.  ed. 
739;  Seiferi  v.  Brooklyn,  101  N.Y.  136.  2  Cent.  Rep.  138. 

^Weeks,  Damnum  Absque  Injuria;  Seifert  v.  Brooklyn,  101  N.  Y.  136,  2 
Cent.  Rep.  136. 

*  ^Kiernan  v.  Jersey  Gity,  50  N.  J.  L.  246,  11  Cent.  Rep.  551, 

^Idaho  Springs  v.  Filteau,  10  Colo.  105. 

''Harrigan,  v.  Wilmington  (Del.  Feb.  21,  1888)  11  Cent.  Rep.  251. 

^Moore  v.  Los  Angeles,  72  Cal.  287. 


Chap.  XY.]       UNDER    WHAT    CIRCUMSTANCES   CITY    LIABLE.  338 

it  is  the  duty  of  a  city  in  providinf^  water-ways, —  sucli  as  sewers 
and  the  like, —  to  provide  such  as  are  sufiieieut  to  carry  off  the 
water  that  may  reasonably  be  expected  to  accumulate ;  and  the 
city  is  liable  in  damages  for  a  failure  to  do  so,  whereby  private 
property  becomes  flooded,  although  the  flow  in  the  particular  in- 
stance was  unusual,'  But  a  sewer  constructed  by  the  owner  of 
premises  as  a  private  drain  does  not  become  a  public  sewer  be- 
cause of  the  property  being  acquired  by  the  municipality  ;  and  a 
party  obtaining  permission  of  the  cit}^  to  connect  his  premises 
with  the  drain  cannot  thereby  cast  the  duty  upon  the  city  to  keep 
the  sewer  in  repair." 

A  municipal  corporation  is  not  liable  for  damages  for  special 
injuries  from  loosening  the  soil  where  it  has  dug  a  ditch  in  a 
street  and  filled  it  in  with  the  same  soil,  although  the  soil  therein 
is  somewhat  more  porous  than  before.' 

"While  municipal  corporations  are  not  liable  for  the  acts  of  per- 
sons it  licenses  to  use  its  streets,  unless  the  thing  authorized  is  in- 
trinsically dangerous  or  illegal,*  or  the  municipal  authorities  have 
notice  of  the  negligence  of  its  licensees,*  and  it  may  authorize 
by  license  parties  not  in  its  employ  to  open  the  public  streets  and 
sidewalks  with  trenches  to  connect  house-di*ains,  water  or  gas 
pipes  with  the  public  mains  in  the  street,  for  private  advantage 
alone,  yet  it  has  in  such  dangerous  work  the  same  responsibility 
as  if  it  were  being  done  by  its  own  agents,  and  has  the  power  to 
take  from  them  indemnity  to  protect  the  city  from  liability  grow- 
ing out  of  the  grant  of  such  privileges.  Thus,  one  whose  cellar 
is  flooded  in  consequence  of  the  negligent  work  of  a  pluml)er 
acting  under  a  license  of  fhe  municipality  in  laying  a  private 
drain  from  a  house  to  the  public  main  in  the  street,  is  entitled 
to  such  damages  as  are  the  natural  and  probable  consequence  of 
the  flooding,  including  the  damage  to  goods  and  the  loss  of  the 

^Spangler  v.  San  Francisco,  84  Cal.  12. 

^Kosmak  v.  New  York,  117  N.Y.  361. 

^Deioein  v.  Peoria,  24  111.  App.  396. 

*Cohen  v.  Neio  York,  113  N.  Y.  582,  4  L.  R.  A.  408;  Iruine  v.  Wood,   51  N 

Y.  224;  Clifford  \.  Dam,  81  N.Y.  56;  Saxton  v.  Zett,  44  iST.  Y.  432;  Creed 

V.  Hartmann,  29  N.Y.  591;  Congreve  v.  Smith,  18  N.Y.  82;  Dickinson  v 

New  York,  28  Hun,  256. 
^Byanv.  Curran,  64  Ind.   345;  Dooley  v.  Sullivan,  112  Ind.  451,  11  West 

Rep.  816;   Warsaw  v.  Danlap,  112  Ind.  579,  12  West.  Rep.  141. 


33i  IMPOSED    DUTIES,  PEKSoNAL.  [Fai't    II. 

use  of  the  cellar.'  Likewise  a  city  is  liable  to  the  owner  of  a 
green-house  who  is  deprived  of  his  supply  of  water  by  reason  of 
the  nedigeiice  of  w'orkmen  employed  by  the  city  in  digging  a 
sewer,  in  uncovering  a  water-pipe  running  to  the  green-house,  and 
leaving  the  same  exposed  so  that  the  water  freezes." 

Where  the  municipal  officers  of  a  town  are  constituted  a  tribu- 
nal by  statute,  and  the  duty  imposed  on  them,  whenever  they  deem 
it  necessary  for  public  convenience  or  health,  to  construct  public 
drains  or  sewers  along  or  across  any  public  way  at  the  expense  of 
the  town,  and  to  have  control  of  the  same,  such  municipal  officers, 
in  the  performance  of  these  duties,  and  in  the  exercise  of  the  au- 
thority with  which  they  are  invested  by  such  general  law,  act,  not 
as  agents  of  the  town,  but  as  public  officers,  deriving  their  power 
from  the  sovereign  authority.  They  act  upon  their  own  responsi- 
bility, and  are  not  subject  either  to  the  control  or  direction  of  the 
inhabitants  of  the  town,  but  are  an  independent  board  of  public 
officers,  vested  by  law  with  the  control  of  all  matters  within  their 
jurisdiction  and  performing  duties  imposed  by  general  laws.' 
Though  chosen  and  paid  by  the  town,  and  for  many  purposes  its 
agents,  as  in  making  contracts  within  the  scope  of  their  authority 
about  the  affairs  of  the  town,  or  acting  under  the  direction  of  the 
town  in  matters  pertaining  to  its  corporate  duties,*  yet  these 
officers  do  not  sustain  this  relation  in  reference  to  the  construction 
of  public  drains  or  sewers.  In  these  matters  they  form  a  part  of 
the  municipal  government  in  the  performance  of  their  public  du- 
ties, and  are  not  servants  or  agents  of  the  municipality  by  whom 
they  are  chosen  and  paid,  rendering  their  principals  liable  for  their 
acts,  any  more  than  are  officers  of  a  fire  department ; '  or  survey- 
ors of  highways  and  street  commissioners  when  making,  repairing 
or  otherwise  performing  their  official  duties  upon  highways  or 

^Anderson  v.  Wilmington  (Del.  Dec.  1889)  19  Atl.  Rep.  509. 

'^Stock  V.  Boston,  149  Mass.  410. 

^Brimmer  v.  Boston,  103  Mass.  33;  Burrillw.  Augusta,  78  Me.  118,  1  New- 
En  g.  Rep.  697;  Woodcock  v.  Calais,  66  Me.  235;  Estesv.  China,  56  Me. 
410;  Lemon  v.  Neioton,  134  Mass.  479;  Child  v.  Boston,  4  Allen,  41;  Tind- 
ley  V.  8iilem,\^l  Mass.  173;  Cashing  v.  Bedford,  135  Mass.  538;  Justice  v. 
Logansport,  101  Ind.  336;  Kistner  v.  Indianapolis,  100  Ind.  310. 

*Deane  v.  Randolph,  133  Mass.  475.  See  Gaspary  v.  Portland,  (Or.  Oct.  37, 
1890)  34  Pac.  Rep.  1036. 

^Kies  V.  Erie  (Pa.)  26  W.  N.  C.  113;  Burrill  v.  Augusta,  78  Me.  118,  1  New 
Eag.  Rep.  697;  Hafford  v.  New  Bedford,  16  Gray,  297. 


Chap.  XY.]        UNDER    WHAT    CIRCUMSTANCES    CITY    LIABLE.  335 

streets : '  or  liealtli  officers,  or  municipal  officers,  in  the  discharji;o 
of  their  duties  in  reUition  to  contagious  diseases;'  or  police  olH- 
cers;^  or  overseers  of  the  poor/  A  town  is  not  liable  for  the 
negligence  of  a  physician,  who,  being  placed  in  charge  of  its  pest- 
house  bv  its  selectmen  during  an  epidemic  of  small-pox,  permits  a 
nurse  to  go  forth  without  disinfection,  and  the  disease  is  communi- 
cated.' But  negligence  on  the  part  of  the  local  health  authorities 
in  exposing  residents  near  a  pest-house  to  a  contagious  disease  will 
create  a  liability."  The  rule  is  generally  recognized  that  where 
the  officers  were  appointed  in  obedience  to  statute,  and  are  inde- 
pendent of  municipal  control,  and  the  injury  was  inflicted  while 
in  their  performance  of  a  public  service  not  peculiarly  local  or 
corporate,  the  corporation  is  exempt  from  liability  unless  expressly 
made  liable  by  statute.'  It  is  not  liable  for  the  negligence  of  an 
officer  in  whose  selection  there  was  no  negligence,"  so  it  is  not 
responsible  for  errors  or  wrongful  acts  of  assessors  or  collectors  of 
taxes,*  nor  for  the  negligent  acts  of  its  town  clerk"  or  town  treas- 
urer;"  nor  can  third  persons,  injured  by  the  negligence,  careless- 
ness or  unskillf ulness  of  such  officers,  while  in  the  performance  of 
duties  imposed  upon  them  by  the  statutes,  in  such  cases,  invoke 
against  their  municipality  the  rule  of  respondeat  superior.  The 
liabilities  of  such  corporations  for  the  torts  or  negligent  acts  of  their 
officers  are  usually  fixed  by  statute.  They  are  to  be  held  liable 
for  the  negligence  or  misconduct  of  their  officers  only  when  made 

^ Small  V.  Danville,  51  Me.  359;  Woodcock  v.  Oalau,  66  Me.  235;    Walcoti  v. 

Swampscott,  1  Allen,  101;  Barney  v.  Lowell,  98  Mass.  570. 
^Mitchell  V,  Rockland,  53  Me.  118;  Barbour  v.  EUsioorth,  67  ^\e.  294. 
*Culter  V.  Streator.  130  111.  238,  6  L.  R.  A.  270;  Eies  v.  Erie  (Pa.)  26  W.  N". 

C.  112;  Cobb  v.  Portland,  55  Me.  381;  Buttrick  v.  L<jwell,  1  Allen,  172; 

Elliott  V.  Philadelphia,  15  Pa.  347. 
*Farrington  v,  Anson,  77  Me.  406;  JVew  Bedford  v.  Taunton,  9  Allen,  207. 
^Brown  v.  Vinalhaven,  65  Me.  402.     See  note  id  Bines  v.  Charlotte  (Mich.)  1 

L.  R.  A.  844;  Offg  v.  Lansing,  35  Iowa,  495,  14  Am.  Rep.  499;  Sumners 

V.  Daviess  County,  103  Ind.  262,  1  West.  Rep.  217. 
^Hagg  v.  Vanderbeurgh  County  Comrs.  60   Ind.  511;  Qifford  v.   Babies  Uos- 

piial  (Sup.  Ct.  June  21,  1888)  17  N.  Y.  S.  R.  886. 
''Symonds  v.  Clay  County,  71  111.  357;  Greenwood  v.  Lom'sville,  13  Bush,  229; 

Richmond  v.  Long,  17  Gratt.  382;  Dargan  v.  Mobile,  31  Ala.  469. 
^Dargan  v.  Mobile,  31  Ala.  469. 
^Lorillard  v.  Monroe,  11  N.  Y.  393. 
^^Lyman  v.  Edgerton,  29  Vt.  305. 
^^Snow  V.  Brunswick,  71  Me.  582;  Dunbar  v.  Boston,  112  Mass.  75. 


336  IMPOSED  DUTIES,  PEESONAL.  [Part  II. 

so  by  express  statute,  or  when  the  act  out  of  wliieh  the  claim 
originates  was  within  the  scope  of  their  corporate  powers,  and  was 
directly  and  expressly  ordered  by  the  corporation.'     Thus,  where 
the  selectmen  of  towns  were  authorized  to  establish  and  maintain 
such  public  drinking  troughs  and  fountains,  within  the  public 
highways  of  their  towns,  "  as  in  their  judgment  the  public  neces- 
sity and  convenience  may  require,"  and  the  towns  were  authorized 
to  raise  and  appropriate  money  to  pay  the  expense  thereof,  these 
provisions  made  the  selectmen  a  board  of  public  officers  charged 
with  this  duty;  they  were  not  agents  qi  the  town,   but   repre- 
sented the  general  public,''  and  as  towns  in  their  corporate  capacity 
had  not  been  given  the  right  by  statute  to  construct  drinking 
troughs  in  the  public  highways,  it  was  decided  that  the  town  could 
not  therefore  be  charged  with  having  created  a  nuisance  from 
which  the  plaintiff  suffered  special  injury.'     In   the  exercise  of 
their  political,  discretionary  and  legislative  functions,  they  are  not 
liable  for  the  misconduct,  negligence  or  omissions  of  the  officers 
whom  they  employ.     It  is  only  in  the  discharge  of  ministerial  or 
specified  duties  assumed  in  consideration  of  the  privileges  con- 
ferred by  their  charter  that  they  are  liable.'     A  municipal  corpo- 
ration is  not  to  be  regarded  as  principal,  and  therefore  liable  for 
the  defalcations  and  delinquencies  of  its  public  officers,  in  failing 
to  perform  public  duties  which  the  law  has  laid  upon  them,  and 
in  respect  to  which  the  municipality  is  neither  invested  with  cor- 
porate power  nor  charged  with  any  corporate  duty  or  statutory 
liability,  and  from  the  performance  of  which  it  derives  no  special 
advantage.     The  officer,  under  such  circumstances,  is  regarded  as 
an  independent  public  agent,  or  quasi  civil  officer  of  the  govern- 
ment, personally  answerable  for  his  misconduct  or  official  delin- 
quencies, and  not   as  the  agent  or  servant  of  the  municipality. 
Omissions  of  duty  imposed  upon  such  an  officer  by  law,  however 
injurious  they  may  be  to  others,  are  not  injuries  for  which  the 

^Burrill  v.  Augusta,  78  Me.  118,  1  New  Eng.  Rep.  697;  Woodcock  v.  Calais, 
66  Me.  235;  Anthony  v.  Adams,  1  Met.  284;  Beane  v.  Randolph,  132  Mass. 
475;  Seele  v.  Deering,  79  Me.  347;  Thayer  v.  Boston,  19  Pick.  511. 

« ^Cushing  v.  Bedford,  125  Mass.  526;  Bulger  v.  Eden,  82  Me.  352,  9  L.  R.  A. 
205. 

^Richmond  v.  Long,  17  Gratt.  382. 


Chap.  XV.]       UNDER    WHAT    CIRCUMSTANCES    CITY    LIABLE.  337 

corporation  of  which  he  is  nominally  an  officer  is  liahle.'  So  a 
municipal  corporation  is  not  liable  for  injuries  and  tortious  acts  of 
its  agents  which  are  in  their  nature  unlawful  or  prohibited.^  So 
it  is  not  liable  for  acts  of  its  officers  in  atteniptinor  to  enforce  a 
void  ordinance,*  nor,  where  a  constable  unlawfully  seizes  and 
sells  real  property  for  city  taxes.*  But  while  it  is  a  general  rule 
that  a  town  is  not  liable  for  the  negligence  of  its  agents  or  servants 
in  a  matter  in  which  it  has  no  interest,  and  which  has  no  direct  or 
natural  tendency  to  injure  any  individual  in  person  or  property, 
-and  which  it  has  in  charge  solely  in  the  performance  of  a  public 
duty  imposed  upon  it  by  law,"  yet  a  city  is  hable  for  the  negli- 
gence of  its  agents  in  the  performance  of  a  public  dut}',  if  they 
are  specially  employed  by  the  city  for  the  particular  work  and  are 
not  acting  as  public  officers.* 

The  municipal  corporation  will  not  be  liable  for  any  deficiency 
or  defect  in  the  plan  adopted,  where  the  improvement  is  made, 
not  b}^  its  direction  as  the  municipal  corporation,  but  by  the  body 
authorized  by  the  general  law  to  plan,  adopt  and  order  the  work. 
This  is  ruled  in  Child  v.  Boston^  4  Allen,  41,  although  the  Act 
authorizing  the  making,  maintaining  and  repairing  of  common 
sewers  was  not  to  take  effect  in  any  city  until  adopted  by  the 
mayor,  aldermen  and  common  council,  and  after  such  acceptance 
the  duty  was  devolved  upon  the  aldermen.  It  was  said  the  duty 
to  determine  what  drains  should  be  built  and  where  they  should 
discharge  was  of  a  quasi  judicial  nature,  involving  the  exercise  of 
a  large  discretion  and  depending  upon  considerations  affecting  the 
public  health  and  general  convenience.     The  action  of  the  alder- 

^Pett^ngill  v.  Yonkers,  116  N.  Y.  558;  Hannon  v.  St.  Louis  County,  62  Mo. 
313;  Morrison  v.  Lawrence.  98  Mass.  219;  Fisher  v.  Boston,  104  Mass.  87; 
Ogg  V.  Lansing.  35  Iowa, 495;  Maxmilian  v.  New  York,  62  N.Y.  160;  Prather 
V.  Lexington,  13  B.  Mon.  559;  Mend  v.  Neio  Haven,  40  Conn.  72;  Eastman 
V.  Meredith,  36  N.  H.  284;  Fowle  v.  Alexandria,  28  U.  S.  3  Pet.  397  7  L 
ed.  719. 

^Worley  v.  Columbia,  88  Mo.'106,  4  West.  Rep.  342;  Brown  v.  Cape  Girardeau 

90  Mo.  377,  7  West.  Rep.  154;  Hunt  v.  Boonville,  65  Mo.  620;  Rowland  v. 

Gallatin,  75  Mo.  134;  Thomson  v.  Boonville,  61  Mo.  282;  Thayer  v.  Boston 

19  Pick.  511. 
^Worley  v.  Columbia,  88  Mo.  106,  4  West.  Rep.  342;  Odellv.  Schroeder,  58 

111.  353. 
*Everson  v.  Syracuse,  100  N.  Y.  577,  1  Cent.  Rep.  756. 
^lindley  v.  Salem,  137  Mass.  172;  Hill  v.  Boston,  123  Mass.  344. 
*Mulcaims  v.  Janesville,  67  Wis.  24. 
22 


338  IMPOSED  DUTIES,  PERSONAL.  [Part  II, 

men  was  not  as  agents  of  the  city  or  under  its  direction,  but  a& 
public  officers.'  As  tlie  corporation  accepted  the  Act,  and  the 
duty  of  maintaining  the  sewers  was  devolved  upon  the  city,  it 
was  thereafter  responsible  for  neglect  in  this  respect,  and  the  case 
•was  distinguished  from  those  cases  holding  that  a  private  action 
cannot  be  sustained  against  a  city  or  town  unless  given  by  statute, 
for  negligence  in  the  discharge  of  a  public  duty,  the  performance 
of  which  is  required  of  all  such  corporations  alike."  And  it  was 
held  that  the  duty  to  maintain  the  sewers  included  the  duty  to 
extend  them  when  the  outlet  became  filled  up  and  surrounded  by 
solid  ground. 

Section  oi.—TJie  Fade  of  Liability  in  J^ew  England^ 

In  Massachusetts  an  early  distinction  was  taken  in  Riddle  v. 
Loc'ks  <&  Canals,  7  Mass.  169,  between  proper  aggregate  corpo- 
rations and  the  inhabitants  of  districts,  who  are  by  statute  invested 
with  particular  powers  without  their  consent,  called  quasi  cor- 
porations. Of  this  description,  it  is  said,  are  counties  and  hun- 
dreds in  England,  and  counties,  towns,  etc.,  in  that  State.  Al- 
though quasi  corporations  are  liable  to  information  or  indict- 
ment for  a  neglect  of  a  public  duty  imposed  on  them  by  law,  yet 
it  is  settled  in  the  case  of  Russel  v.  Devon,  2  T.  R.  667,°  that 

'This  is  very  clearly  explained  by  Mannino:,  J".,  in  Detroit  v.  Corey,  9  Mich. 
165,  184.  See  also  MilUv.  BrooUiin,  32  N.  Y.  489;  Ro«s  v.  Madimn,  1 
Ind'.  281;  Kensington  v.  Wood,  10  Pa.  93,  95.  But  see  Denver  v.  Rhodes, 
9  Colo.  554,  where  it  is  said  the  construction  of  a  sewer  is  not  a  public 
work  for  the  benefit  of  the  people  of  the  State,  so  as  to  shield  the  cor- 
poration from  liability  to  persons  whose  property  is  damaged  during  the 
progress  of  the  work. 

^Mower  v.  Leicsder,  9  Mass.  247;  Bigelow  v.  Randolph,  14  Gray,  541. 

^See  also  Alderson,  B.,  in  MoKinnon  v.  Benson,  8  Exch.  319,  321,  323;  Han- 
nen  J.,  in  Gibson  v.  Preston,  L.  R.  5  Q.  B.  218,  222;  Cockburn,  CJi.  J., 
in  Scott  V.  Manchester,  2  Hurl.  &  N.  204,  210;  Kent,  C,  in  Bartlett  v. 
Crozier,  17  Johns.  439.  454;  Nelson,  Gh.  J.,  in  Bailey  v.  New  York,  3 
Hill  531  539;  Selden,  J.,  in  Weet-^.  Brockport,  16  N.  Y.  161,  167,  note; 
Strong,  J.,  in  Western  8.  F.  Soc.  v.  Philadelphia,  31  Pa.  185,  189.  The 
decision  in  Ilenly  v.  Lyme,  5  Bing.  91,  3  Barn.  &  Ad.  77,  2  Clark  &  F. 
331,  rested  the  liability  in  sustaining  a  judgment  for  the  neglect  of  the 
corporation  to  repair  a  sea-wall,  and  clear  a  tide-water  creek,  on  the 
ground  that  the  declaration  in  effect  charged  that  the  corporation  "are 
bound  by  prescription,  and  it  might  be  the  very  condition  and  terms  of 
their  creation  or  charter;"  and  in  White  v.  Bindley  Board  of  Health,  L.  R. 
10  Q.  B.  219,  the  reason  of  responsibility  for  injury  from  a  defective 
grate  over  a  sewer  was  that  the  defendant  corporation  owned  the  sewer. 


Chap.  XV.]        RULE    OF    LIAIJILITV    !>.'    NEW    EXGLA>rD.  331> 

no  private  action  can  be  iiiaiiitaiiiecl  against  tlieni  for  a  l)reacli  of 
their  corporate  duty,  unless  such  action  be  given  by  statute.  And 
tlie  sound  reason  is  that,  having  no  corporate  fund  and  no  legal 
means  of  obtaining  one,  each  corporator  is  liable  to  satisfy  any 
judgment  rendered  against  the  corporation;'  and  in  Massachusetts 
payment  of  such  a  judgment  has  never  been  compelled  by 
mandamus.  This  burden  the  common  law  will  not  impose, 
but  in  cases  where  the  statute  is  an  authority,  to  which 
every  man  must  be  considered  as  assenting.  But  in  reg- 
ular corporations,  which  have,  or  are  supposed  to  have,  a  cor- 
porate fund,  this  reason  does  not  apply.  According  to  this 
reasoning,  where  cities,  towns  or  counties  have  the  duty  imposed 
upon  them  as  owners,  or  having  possession,  of  the  highways, 
gutters  and  drains,  with  the  power  to  raise  funds  to  care  for  them, 
their  liability  should  be  recognized  for  neglect  of  such  duty."  But. 
in  Moicer  v.  Leicester^  9  Mass.  247,  250,'  this  question  was  decided 
adversely  to  the  person  injured  by  a  defect  on  the  higliwa}^,  al- 
though the  town  was  declared  a  corporation  by  statute,  capal)le  of 
suing  and  being  sued,  and  the  duty  of  keeping  the  public  high- 
ways in  repair  expressly  imposed,  and  the  corporation  had  a 
treasury  out  of  which  judgments  could  be  paid.  The  opinion, 
"  Curia^''  is  brief,  and  denies  the  right  of  action  unless  given  by 

^Eaickes  v.  Kennebeck,  7  Mass.  461,  463;  Chase  v.  Merrimack  Bank,  19  Pick, 
564,  569;  Gaskill  v.  Dudley,  6  Met.  546;  Beardsley  v.  Smitli,  16  Conn.  368. 

^Supervisors  v.  United  States,  71  U.  S.  4  Wall.  435,  18  L.  ed.  419. 

*Se3  Riddle  y.  Locks  &  Canals,  7  Mass.  169,  187;  White  v.  Phillipston,  10  Met. 
108,  110;  Sawyer  v.  Northfield,  7  Cush.  490,  494;  Adams  v.  Wiscasset 
Bank,  1  Me.  361,  364;  Reedv.  Belfast,  20  Me.  246;  Farmim  v.  Concord 
2  N.  H.  393;  Aastmnn  v.  Meredith,  36  N.  H.  284,  297-300;  Hyde  v.  Ja- 
maica, 27  Vt.  443,  457;  State  v.  Burlington,  36  Vt.  521,  524;  Chidsey  v. 
Canton,  17  Conn.  475,  478;  Taylor  v.  Beckham,  8  R.  I.  349.  352;  Bartlelt 
V.  Crozier,  17  .Johns.  439,  452-455;  Sussex  v.  Stroder,  18  N.  J.  L.  108; 
Cooley  V.  Essex,  27  N.  J.  L.  415;  Livermore  v.  Camden,  29  N.  J.  L.  415,' 
31  N.  J.  L.  507;  Niles  v.  Martin,  4  Mich.  557;  Hedges  v.  Madison 
County,  6  111.  567;  White  v.  Bond  Cuunty,  58  111.  297;  Waltham  v.  Kem- 
per, 55  111.  346;  Bussell  v.  Steuben,  57  111.  35.  For  negligent  construction 
of  public  buildings  no  liability  is  incurred  except  by  statute.  Sussex  v. 
Stroder,  18  N.  J.  L.  21 ;  Hamilton  County  v.  Mighels,  7  Ohio  St.  100; 
Eastman  v.  Meredith,  36  N.  II.  284;  Bigelow  v.  Randolph,  14  Gray,  541.' 
A  public  corporation  is  not  liable  to  an  action  by  individuals,  unless  it 
be  given  by  statute.  White  v.  Charleston,  2  Hill  (S.  C.)  571.  It  is  not 
liable  in  case,  or  other  form  of  civil  action,  for  neglect  of  public  duly, 
unless  such  liability  be  expressly  declared  by  statute.  State  v.  Hancock 
Co.  Comrs.  11  Ohio  St.  190;  Hedges  v.  Madison  Co.  7  111.  567;  Van  Eppes 
V.  Mobile  Co.  Co7nrs.  25  Ala.  460;  Larkinv.  Saginaw  Co.  11  Mich.  88- 
Bray  v.  Wallingford,  20  Conn.  416,  419. 


340  IMPOSED    DUTIES,  PERSONAL.  [Part    II. 

statute  in  the  particular  instance,  and  adds :  "  This  question  is 
fully  discussed  in  the  case  of  Russel  v.  Devon,  cited  at  the  bar, 
and  tlie  reasoning  there  is  conclusive  against  the  action."  Of 
that  case  the  editor,  Benjamin  Rand,  in  a  note,  says:  "From  the 
reasoning  of  the  court  in  Russel  v.  Devon,  2  T.  R,  667,  that 
case  seems  to  have  been  decided  merely  on  the  ground  that  no 
action  would  lie  against  the  inhabitants  of  the  town  unless  given 
by  some  statute.  If  so,  it  is  not  very  obvious  how  this  decision 
can  have  any  other  tendency  than  to  show  that,  upon  principle, 
the  action  may  be  maintained  here."  Exceptions  have  been  from 
time  to  time  admitted  to  this  rule.  Thus,  where  a  special  charter, 
accepted  by  a  city  or  town,  or  granted  at  its  request,  requires  it 
to  construct  public  works,  and  enables  it  to  assess  the  expense 
thereof  upon  those  immediately  benefited  thereby,  the  town  will 
be  liable  for  a  neglect  of  the  duty.' 

IJenly  v.  Lyme,  5  Bing.  91,  and  Emery  v.  Lowell,  104  Mass. 
13,  and  the  cases  following  them,  have  reinforced  the  distinction 
established  in  Child  v.  Boston,  4  Allen,  41,  that  while  no  action 
lies  for  a  defect  or  want  of  sufficiency  in  the  plan  or  system  of 
drainage  adopted  in  the  exercise  of  a  quasi  judicial  discretion, 
under  powers  especially  conferred  by  statute,  the  duty  of  keeping 
the  common  sewers  in  repair  and  free  from  obstructions,  after 
they  have  been  constructed  and  have  become  the  property  of  the 
city  under  such  authority,  is  a  ministerial  duty,  for  neglect  of 
which  the  city  is  liable  to  any  person  injured.  The  same  is  true 
of  the  duty  actually  to  construct  them  with  reasonable  care  arid 
skill.  And  there  is  no  difference  in  these  duties  whether  the  city 
has  acquired  the  right  to  maintain  the  sewer  by  prescription  or 
has  laid  it  under  the  statute.^ 

While  the  colonial  growth  of  local  population,  clustering  to- 
gether for  companionship  and  mutual  protection,  gradually  created 
towns,  which  received  from  the  Legislature,  by  name,  power  to 
manage  their  own  local  affairs,  electing  representatives  and  town 

'  Metcalf,  J.,  in  Bigelow  v.  Randolph,  14  Gray,  543;  Child  v.  Boston,  4  Allen, 
41  51-  Perley,  Ch.  J.,  in  Eastmans.  Meredith,  36  N.  H.  289-294;  Ne 
braxka  City  v.  Campbell,  67  U.  S.  2  Black,  590,  17  L.  ed.  271;  Weightman 
V.  Washington,  66  U.  S.  1  Black,  39,  17  L.  ed.  52. 

2  See  Gould  y.  Boston,  120  Mass.  300;  Bates  y.  Westborough  (Mass.  Feb.  37, 
1890)7  L.  R.  A.  156;  Phillips  y.  Mankato,  23  Minn.  276;  Bradbury  v. 
Benton,  69  Me.  194. 


Chap.  XY.J        RULE    OF    LIABILITY    IN    NEW    ENGLAND.  341 

officers,  making  by-laws  and  disposiiisj:,  subject  to  legislative  con- 
trol, of  unoccupied  lands  within  their  territory,  becoming  thus 
municipal  corporations,  without  any  formal  Act  of  incorporation,* 
yet  the  courts  were  unwilling  to  recognize  the  marked  distinction 
between  such  towns  and  cities,  with  their  complete  local  organiza- 
tion and  power  of  self  government  and  their  political  unity,  and 
"  hundreds  "  in  England,  althongh  as  to  these  towns  it  was  expressly 
decided  by  the  courts,  even  before  it  was  declared  by  statute,  that 
they  were  capable  of  holding  property  and  making  contracts  for 
tlie  purpose  for  which  they  were  established,  and  power  was  given 
them  by  law  to  sue  and  be  sued.'     Nor  have  the  courts  recognized 
the  change  to  a  town  with  its  enlarged  powers,  as  imposing  an  ad- 
ditional duty,  followed  by  liability  for  its  neglect,  in  the  care  of 
its  highways.     It  is  still  held,  indeed,  in  all  the  New  England  States 
that  neither  a  town  nor  a  city  is  liable  for  injury  from  a  defective 
highway  unless  such  action  has  been  clearly  given  by  statute,  and 
the  same  rule  prevails  in  New  Jersey,  Michigan  and  California.' 
It  is  little  cause  for  surprise  that,  in  the  newer  States,  where 
such  towns  and  cities  sprang  into  full  life  and  asserted  the  rights 
of  corporate  existence  and  the  exercise  of  corporate  power,  almost 
before  a  census  of  the  population  could  be  taken,  or  a  formal  or- 
ganized government  established,  the  marked  difference  between 
them  and  the  English  hundred  and  shire  should  have  freed  the 
courts,  having  jurisdiction  of  the  youthful  prodigies,  of  any  undue 
deference  to  English  precedents,  which  could  properly  apply  alone 
to  English  pi-ogi  ess.    Nor  was  the  character  of  the  population  such 

^Hill  V.  Boston,  123  Mass.  344;  Porter  v.  Sullivan,  7  Gray.  441,  444;  Com.  v. 
Roxbury,  9  Gray,  451,  485;  West  Roxbury  v.  Stoddard,!  Allen,  158,  109; 
Lynn  v.  Naliant,  113  Mass.  433,  448. 

«Prov.  Stat.  1692-93  (4  W.  &  M.)  chap.  28;  1694-95  (6  W.  &  M.)  chap.  13; 
1  Prov.  Laws  (State  ed.)64,  66,  182;  Anc.  Chart.  247,  249,  279;  Stat.  1785, 
chap.  75,  §  8;  Rev.  Stat.  chap.  15,  §  8;  Gen.  Stat.  chap.  18,  §  1;  Wind^ 
ham  V.  Portland,  4  Mass.  384,  389;  Rurnford  Fourth  School  Dint.  v.  Wood, 
13  Mass.  193,  198;  First  Parish  in  Sutton  v.  Cole,  3  Pick.  232,  240;  Rev. 
Stat.  chap.  15,  §  11,  and  Commissioners'  note;  Gen.  Stat.  chap.  19,  §  9. 

^Bulger  v.  Eden  (Me.  Feb.  17,  1890)  9  L.  R.  A.  205;  Burrill  v.  Augusta,  78 
Me.  118,  1  New  Eng.  Rep.  697;  W^oodcock  v.  Calais,  66  Me.  235;  Seele  v. 
Peering,  79  Me.  347,  4  New  Eng.  Rep.  550;  Deanew.  Randolph,  132  Mass. 
475;  Oliver  v.  Worcester,  102  Mass.  489;  Jones  v.  New  Haven,  34  Conn.  1, 
13;  Ileu-ison  v.  New  Haven,  37  Conn.  475;  Pray  v.  Jersey  City,  32  N.  J. 
L.  394;  Petroit  v.  Blackeby,  21  Mich.  84;  Chope  v.  Eureka,  78'Cal.  588,  4 
L.  R.  A.  325;  Winbigler  v.  Los  Angeles,  45  Cal.  36;  Tranter  v.  Sacramento, 
61  Cal.  275;  Bennett  v.  Contra  Costa  County,  67  Cal.  77;  Crowell  v.  Sonoma 
County,  25  Cal.  315;  Huffman  v.  San  Joaquin  Co.  21  Cal.  430. 


3J:2  IMPOSED    DUTIES,  PERSONAL.  [Part  II. 

as,  while  fully  appreciating  its  privileges  and  the  legitimate  accom- 
panying burdens,  sought  escape  from  responsibility  for  its  own 
neglect  or  carelessness.  Naturally  such  responsibility,  freely  ad- 
mitted by  the  ambitious  municipalities,  was  enforced  by  tlie  courts 
as  more  suitable  to  the  existing  conditions  of  responsil>le  self  gov- 
ernment than  the  common-law  rule  applied  in  England  and  in  the 
Colonies.*  Indeed,  the  general  rule  is  that  wherever  a  municipal 
•corporation  is  clothed  by  charter  with  exclusive  control  of  its 
streets,  or  its  common  council  or  trustees  are  empowered  to  care 
for  and  repair  the  streets,  it  is  liable  to  respond  in  damages  to  the 
person  injured  by  the  wrongful  or  negligent  failure  to  keep  such 
streets  safe  for  the  use  of  passengers  thereon.^     The  rule  holds 

Warrington  v.  St.  Louis,  89  Mo.  208,  4  West.  Rep.  679;  Malcairns  v.  Janes- 
tille,  67  Wis.  24;  Welter  v.  St.  Paul,  40  Minn.  460;  Cline  v.  Gresent  Giti/ 
E.  Go.  (La.  Dec.  2,  1889)  6  So.  Rep.  851 ;  Denver  v.  Rhodes,  9  Colo.  554; 
Smoolv.Wetumpka,  24  Ala.  112;  Pittsburgh  v.  Grier,  22  Pa.  54;  Dayton 
V.  Pease,  4  Oliio  St.  80;  Indiunnpohs  v.  Evimebnan,  108  Ind.  530,  6  West. 
Rep.  566;  Evanston  v.  Ounn.  99  U.  S.  660,  25  L,  ed.  306;  Barnes  v.  Dis- 
trict of  Golumbia,  91  U.  S.  540,  23  L.  ed.  440;  Maxicellv.  District  of  Gol- 
umbia, 91  U.  S.  557,  23  L.  ed.  445;  Dant  v.  District  of  Golvmbia,  91  U.  S. 
557,  23  L.  ed.  446;  District  of  Columhia  v.  Armes,  107  U.  S.  519,  27  L.  ed. 
618;  New  York  v.  Sheffield,  71  U.  S.  4  Wall.  Ib9,  18  L.  ed.  416;  Nebraska 
Cifyv.  Campbell,  67  U.  S.  2  Black,  590,  17  L.  ed.  271;  Chicago  v.  Bobbins, 
67  U.  S.  2  Black,  218,  17  L.  ed.  298;  Bobbins  v.  Chicago,  71  U.  S.  4  Wall. 
658,  18  L.  ed.  427;  St.  Paul  Water  Co.  v.  Ware,  83  U.  S.  16  Wall.  566,  21 
L.  ed.  485;  Kenyon  v.  Lidianapolis,  1  Wiis.  (Ind.)  129 ;  Chicago  v.  M'cGiven, 
78111.  347;  Bockford  v.  Hildcbrand,  61  111.  155;  Owen  v.  Chicago,  10  111. 
App.  465;  Gibson  v.  Johnson,  4111.  App.  288;  Warrens.  Wright,  '6  111.  App. 
602;  Grant  v.  Stillwater,  35  Minn.  242;  Theise  v.  St.  Paul,  36  Minn.  526; 
Osborne  v.  Detroit,  32  Fed.  Rep.  36:  Denver  v.  Dean.  10  Colo.  375;  Boulder 
V.  Niles,  9  Colo.  415;  Sterling  v.  Merrill,  124  111  522,  14  West.  Rep.  399; 
Brunning  v.  Springfield.  17  111.  143;  Glayhurgh  v.  Chicago,  25  111.  533; 
Springfield  v.  De  Claire,  49  lil.  476;  Anne  Arundel  County  v.  Duckett,  20 
Md.  468;  Harmon  v.  St.  Louis  County,  62  Mo.  318;  Bennett  v.  Whitney,  94 
N.  Y.  302;  Hover  v.  Barkhoff,  44  N.  Y.  113;  Storrs  v.  Utica,  17  N.  Y.  104; 
Barton  v.  Syracuse,  36  N.  Y.  54;  Ehrqott  v.  Neio  York,  96  N.  Y.  264; 
Hume  V.  New  York,  74  N.  Y.  264;  Dwvenport  v.  Ruckman.  37  N.  Y.  568; 
Requa  v.  Rochester,  45  N.  Y.  129;  Baiiey  v.  New  York,  3  Hill,  531;  Weed 
V.  Ballston  Spa,  76  N.  Y.  329;  Albrittin  v.  Huntsville,  60  Ala.  486;  Selma 
V.  Perkins,  68  Ala.  145;  Denter  v.  Dunsmore,  7  Colo.  328;  Delger  v.  St. 
Paul,  14  Fed.  Rep.  567;  Parker  v.  Malo7i,  39  Ga.  725;  Sterlivg  v.  Thomas, 
60111.  2*14;  Bohen  V.  Waseca,  32  Minn.  176;  Shartle  v.  Minneapolis,  17 
Minn.  308;  Gorham  v.  Gooperstown.  59  N.  Y.  660;  Knoxeille  v.  Bell,  12 
Lea,  157;  Griffin  v.Williarnstown,  6  W.  Va.  312;  Boulder  v.  Niles,  9  Colo. 
415;  Sawyer  v.  Corse,  17  Gratt.  241;  Richmond  v.  Long,  Id.  375;  Western 
College  v.  Cleveland,  12  Ohio  St.  377;  McCombs  v.  J.A;r6>n,  15  Ohio,  476; 
Rhodes  v.  Cleveland,  10  Ohio,  159. 

Wennett  v.  Whitney,  94  N.  Y.  302;  5ocer  v.  Barkhoff,  44  N.  Y.  IIC;  Hutson 
V.  iVew  ror/c,  9  N.  Y.  163;  (??vj^?i.  v.  New  York,  Id.  456;  Robinson  v. 
Chamberlain,  34  N.  Y.  380;  IFeeJ  v.  Brockport,  16  N.  Y.  161,  wofe;  Cbn- 
rad  V.  Lthaca,  16  N.Y.  158;  Hunt  v.  iVew;  r<?rA;,  20  Jones  &  S.  198;  Barton 
V.  Syracuse,  37  Barb.  292;  .ff^art    v.  Rondout,  44  Barb.  385;    (jtor^    v. 


Chap.  XV.]        RULE    OF    LIAr,ILITY    IN    NEW    ENGLAND.  343 

such  cities  and  towns  liable  for  damages  caused  by  a  failure  to  keep 
their  streets  in  a  safe  condition  for  travel,  whether  sucli  liability  is 
specifically  imposed  by  the  Act  of  incorporation  or  not,'  and  mu- 
nicipal corporations  upon  which  the  duty  is  imposed  to  keep  in 
repair  streets  or  bridges,  and  which  have  the  means  of  accomplish- 
ing such  duty,  are  liable  for  any  damage  arising  out  of  neglect  in 
keeping  the  same  in  proper  coiulition." 

But  in  Xew  England  the  rule  there  recognized  in  terms,  that  a 
private  action  cannot  be  maintained  against  a  town  or  otlier  quasi 
•public  corporation  for  a  neglect  of  corporate  duty,  unless  such  action 
be  given  by  statute,  is  admitted  to  be  of  limited  application.  It  is 
applied,  in  cases  of  towns,  only  to  the  neglect  or  omission  of  a 
town  to  perform  those  duties  which  are  imposed  on  all  towns, 
without  their  corporate  assent,  and  exclusively  for  public  purposes ; 
and  not  to  the  neglect  of  those  obligations  which  a  town  incurs, 
when  a  special  duty  is  imposed  on  it,  with  its  consent,  express  or 
implied,  or  a  special  authority  is  conferred  on  it  at  its  request.  In 
the  latter  cases,  a  town  is  subject  to  the  same  liabilities,  for  the 
neglect  of  these  special  duties,  to  which  private  corporations  would 
be,  if  the  same  duties  were  imposed,  or  the  same  authority  were 
conferred,  on  them,  including  their  liability  for  the  wrongful  neg- 
lect as  well  as  the  wrongful  acts  of  their  officers  and  agents." 
The  distinction  is  the  same  as  that  between  public  officers  —  not 

Lockport,  49  Barb.  580;  Daxenport  v,  Ruckman,  37  N.  Y.  568:  McCarthy 
V.  Syracuse,  46  N.  Y.  194;  Reqxia  v.  Rochester,  45  N.  Y.  129;  Mosei/  v 
Troy,  61  Barb.  580;  Hincs  v.  Lockport,  50  N.  Y.  236;  Adsitv.  Brady  4 
Hill,  630;  New  York  v.  Furze,  3  Hill,  612;  Reinliard  v.  New  York,  2  Daly 
243;  Diveny  v.  Elmira,  51  N.  Y.  506;  Todd  v.  Troy,  61  N.  Y.  506;  Ehrgot't 
V.  New  York,  96  N.  Y.  264;  Hume  v.  Neic  York.  74  N.  Y.  264;  Weed  v. 
Balhton  Spa,  76  N.  Y.  329;  Alhrittin  v.  Jlunf.mlle,  60  Ala.  486;  Senna  v. 
Perkins,  68  Ala.  145;  Chicago  v.  Bobbins,  67  U.  S.  2  Black.  418,  17  L.  ed.' 
298;  Denver  v.  Dunsmore,  7  Colo.  328;  Delger  v.  St.  Paul.  14  Fed.  Rep. 
567;  Parker  v.  Macon.  39  Ga.  725;  Sterling  v.  Thomas,  60  111.  264;  Bohen 
V.Waseca,  32  Minn.  176;  Shartle  v.  MinnenpoUs,  17  Minn.  308;  Oorhamv. 
Cooperstoxm,  59  N.  Y.  660;  Enoxville  v.  Bell,  13  Lea,  157;  Griffin  v.  Will- 
iamstown,  6  W.  Va.  312. 

^Boulder  v.  Niles,  9  Colo.  415. 

'i Nebraska  City  v.  Campbell,  67  U.  S.  2  Black,  590,  17  L.  ed.  271;  Chioigo  v 
Bobbins,  67  U.  S.  2  Black,  418,  17  L.  ed.  298;  Bobbins  v.  Chicarp  71  U  8 
4  Wall.  657,  18  L.  ed.  427;  St.  Paul  Water  Co.  v.  Ware,  83  U  b  16  Wall 
566,  21  L.  ed.  485. 

^Murphy  V.  Lowell,  124  Mass.  564;  Emery  v.  Lowell,  104  Mass.  15;  Child  v. 
Boston,  4  Allen,  41,  52;  Merrifieldv.  Worcester,  110  IMass.  218;  Oliver  v. 
Worcester,  102  Mas?.  500.  See  also  Hill  v.  Boston,  122  Mass.  358,  3^0; 
Tindley  v.  Salem,  137  ]\Iass.  172.     In  such  cases  the  work  is  not  purely 


34:4:  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

paid  for  special  services  by  private  persons,  but  by  the  public  for 
public  services,  whose  contract  is  with  the  State  and  obligation  to 
the  State  alone — and  private  individuals  who  for  compensation 
from  the  State  or  sovereign  power  assume  certain  duties,  which 
are  treated  as  assumed  towards  and  to  inure  to  the  benefit  of  every- 
one interested  in  their  performance.  Corporations  have  been 
placed  with  the  latter  class.' 

And  so  towns  are  liable  there,  as  they  are  elsewhere,  for  negli- 
gence in  managing  or  dealing  with  property  or  rights  held  by  them 
for  their  own  advantage  or  emolument.  A  municipal  corporation 
owning  and  keeping  property  for  public  purposes  is  as  much  sub- 
ject as  a  private  individual  to  the  usual  rule,  sic  uiere  tuo  ut  alien- 
um  non  IcBdas."^  A  city  is  liable  for  damages  occasioned  by  a 
nuisance  caused  by  the  defective  construction  of  the  privy  well  of 
a  school-house  belonging  to  the  city.^ 

Wliere  a  special  charter  accepted  by  a  city  or  town,  or  granted 
at  its  request,  requires  it  to  construct  public  works  and  enables  it 
to  assess  the  expense  thereof  upon  those  immediately  benefited 
thereby,  or  to  derive  benefits  in  its  own  corporate  capacity  from 
the  use  thereof,  by  way  of  tolls  or  otherwise,  the  town  is  liable,  as 
any  other  corporation  would  be,  for  any  injury  done  to  any  person 
in  the  negligent  exercise  of  the  powers  so  conferred.*  So  where 
a  municipal  corporation  holds  or  deals  with  property  as  its  own,, 
not  for  tlie  direct  and  immediate  use  of  the  public,  but  for  its  own 
benefit,  by  receiving  rents  or  otherwise,  in  the  same  way  as  a  pri- 
vate owner  might,  it  is  liable  to  the  same  extent  he  would  be  for 
the  negligent  management  thereof  to  the  injury  of  others, — thus, 
for  injury  to  a  private  individual  by  erecting  houses  on  a  street 
and  receiving  rent;^   so  for  injury  at  a  wharf  for  which  the  city 

for  the  direct  and  immediate  use  of  the  public  alone,  but  partly  commer- 
cial in  its  cliaracter,  in  which  some  benefit  accrues  to  the  municipality  by 
way  of  consideration  for  the  conveniences  afforded  to  tliosewho  are  will- 
ing to  pay  for  tliem.     Bulger  v.  Eden  (Me.  Feb.  17,  1890)  9  L.  R.  A.  203. 

^Bigelow  v.  Randolph,  14  Gray,  541;  Weet  v.  Brockport,  Selden,  J.,  reported 
in  note  to  Conrad  v.  Itliaca,  16  N.  Y.  161. 

*  ^Briegel  v.  Philadelphia  (Pa.)  26  W.  N.  C.  253.  See  also  Moulton  v.  Scar- 
borough, 71  Me.  269,  and  cases  cited;  Hand  v.  Brookline,  126  Mass.  324. 

*Henly  v.  Lyme,  5  Bing.  91 ;  Weightman  v.  Washington,  66  U.  S.  1  Black,  39,. 
17  L  ed  52;  Nebraska  City  v.  Campbell,  67  U.  S.  2  Black,  590,  17  L.  ed. 
271;  Perley,  Ch.  J.,  in  Eastman  v.  Meredith,  36  N.  H.  289-294;  Metcalf, 
/.,  in  Bigeloio  v.  Randolph,  14  Gray,  543;  Child  v.  Boston,  4  Allen,  41,  51. 

^Thayer  v.  Boston,  19  Pick.  511. 


Chap.  XV. J         RULE    OF    LIABILITY    IM    NEW    ENGLAND.  345 

received  wharfage;'  so  for  leaving  a  hole  near  a  path  to  a  l)uil(]- 
ing  owned,  used  and  partly  rented  by  the  city,  it  was  held  liable 
at  common  law  to  one  who  fell  into  it.'  When  property  is  used 
or  business  is  conducted  by  a  town  principally  for  public  purposes, 
under  the  authority  of  the  law,  but  incidentally  and  in  part  for 
profit,  the  town  is  liable  for  negligence  in  the  management  of  it.* 
A  town  owning  a  town  hall  larger  than  it  actually  needs  for  mu- 
nicipal purposes  is  not  bound  to  keep  the  part  it  does  not  use 
wholly  unoccupied,  but  may  derive  a  revenue  therefrom  by  renting^ 
or  allow  the  same  to  be  used  gratuitously.*  But  if  it  assumes  to 
rent  out  such  unoccupied  portion  it  thereby  becomes  liable,  in  the 
same  manner,  and  to  the  same  extent,  that  a  private  owner  would 
be.^  If,  however,  the  corporation  let  its  building,  not  for  prolit, 
but  gratuitously,  no  liability  arises."  A  city  which  has  under- 
taken, voluntarily  and  gratuitously,  the  care  of  its  shade  trees,  is 
liable  to  a  person  injured  by  the  falling  of  a  dead  limb  negligently 
allowed  to  remain  on  a  tree,  the  duty  thus  undertaken  being  not 
strictly  governmental,  but  rather  private  and  ministerial.'' 

Where  paupers  whose  support  was  chai'geable  to  another  town, 
and  to  the  Commonwealth,  were  boarded  for  pay  upon  the  town 
farm,  and  persons  employed  to  work  upon  the  highways  were  also 
boarded  there,  and  horses  were  kept  there  principally  for  use  in 
repairing  the  highways,  and  the  master  at  the  town  almshouse 
employed  one  Crawford  to  work  at  the  almshouse,  and  on  Febru- 
ary 1,  1887,  directed  said  Crawford  to  go  to  Boston  with  a  two- 
horse  team  to  haul  manure  for  the  town  farm,  and  while  returning 
through  Xewton,  an  adjoining  town,  the  plaintiff  was  knocked 
down  and  injured  at  the  corner  of  two  streets  by  the  team  driven 
by  Crawford,  it  was  said  that  it  cannot  be  held  that  the  use  of  the 
farm  by  the  defendant  was  illegal,  so  as  to  exonerate  the  town 

^Pittsburgh  v.  Grier,  23  Pa.  54.      See  also  Eastman  v.  Meredith,  36  N.  H. 

295;  Mersey  Docks  v.  Gibbs,  11  H.  L.  Cas.  687;  Bailey  v.  New  York,  3  Ilill, 

531,  per  Chief  Justice  Nelson. 
'^Oliver  v.  Worcester,  103  Mass.  489. 
^Worden  v.  New   Bedford,  131  Mass.  23;  Oliver  v.  Worcester,  102  Mass.  489; 

Tindley  v.  Salem,  137  Mass.  173. 
^French  v.  Quincy,  3  Allen,  13. 
<>  Warden  v.  New  Bedford,  131  Mass.  34. 
^Larrabee  v.  Peabody,  188  Mass.  561. 
'^■Jones  V.  New  Uaven,  34  Conn.  1. 


346  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

from  liability  on  account  of  it.  It  was  not  an  appropriation  of 
public  money  to  a  commercial  enterprise,  conducted  primarily  for 
profit.  The  income  received  from  tlie  farm  was,  apparently,  inci- 
dental to  the  use  of  it  in  tlie  support  of  paupers  having  a  residence 
in  the  town,  and  in  boarding  horses  and  men  employed  upon  the 
highways  which  the  town  maintained.  A  city  or  town  may 
make  any  reasonable  provision  for  the  support  of  paupers,  or  for 
sustaining  other  public  burdens  imposed  upon  it,  and  for  that  pur- 
pose may  manage  a  farm  which  produces  more  crops  than  are 
needed  for  the  food  of  the  paupers,  and  may  sell  or  exchange  the 
surplus.  It  may  transact  business  outside  of  the  authority  ex- 
pressly given  it,  if  the  business  is  incidental  to  the  performance  of 
its  public  duties.  Overseers  of  the  poor  are  public  officers  who 
commonly  act  under  the  authority  of  the  law,  and  not  as  agents  of 
a  town.  But  in  some  matters  they  may  represent  the  town  as  its 
agents.'  They  have  the  care  and  custody  of  the  paupers  in  their 
respective  cities  and  towns,  and  are  to  see  that  they  are  suitably 
relieved,  supported  and  employed ;  but  the  city  or  town  is  usually 
to  direct  the  manner  and  provide  the  means  of  supporting  its 
paupers.  But  if  a  town  sees  fit  to  buy  a  farm,  and  cultivate  it  in 
connection  with  an  almshouse,  there  is  nothing  in  the  statute  which 
^ives  the  overseers  of  the  poor  a  right  to  manage  it  without  au. 
thority  from  the  town. 

It  was  shown  in  Neffer  v.  Wellesley,  148  Mass.  487,  2  L.  E. 
A.  500,  that  the  same  persons  held  the  offices  of  overseers  of  the 
poor,  highway  surveyors  and  selectmen.  In  one  capacity  they  had 
the  care  and  oversight  of  the  paupers,  in  another  of  the  roads  and 
bridges,  and  in  the  third  of  many  of  the  other  prudential  affairs 
of  the  town.  There  the  farm  was  used  in  part  for  the  support  of 
the  paupers,  of  whom  the}^  had  charge  as  overseers  of  the  poor, 
in  part  for  a  purpose  which  was  connected  with  tlie  maintenance 
of  the  highways,  which  were  in  charge  of  the  highway  surveyors, 
and  in  part  for  the  production  of  income,  a  use  which  was  outside 
of  the  express  authority  of  any  board  of  public  officers,  and  was 
under  an  assumption  of  authority  that  seems  to  have  been  approved 
and  ratified  by  the  town.  And  it  was  said  that  the  three  persons 
who  managed  the  farm  in  the  interest  of  the  town  for  these  several 

^NewBedford  v.  Taunton,  9  Allen,  207. 


•Chap.  XV.]  RULE    OF    LIABILITY    IN    NEW    ENGLAND.  347 

purposes  cannot  be  deemed  to  liave  been  actinc^  merel}'  as  a  sinijle 
l)oard  of  public  officjrs;  but  they  represented  the  defendant  in 
different  capacities,  sucli  as  to  make  them  in  that  business  the  de- 
fendant's agents,  and  the  fact  of  the  driver's  net^h'gence,  wliich  the 
jury  found,  was  ruled  to  conchisively  establish  the  town's  lialjility. 
I'ut  a  city  is  not  liable  for  injuries  resulting  from  the  negligence 
of  officers  engaged  in  tlie  management  of  a  workhouse  which  lias 
been  established  purelj'  for  the  public  service,  and  to  assist  in  the 
performance  of  its  public  duty  of  supporting  paupers  and  crimi- 
nals, and  who  also  conduct  the  work  incidental  to  the  maintenance 
of  the  institution  and  to  the  employment  of  its  inmates,  although 
the  establishment  was  voluntarily  erected  and  maintained  under 
legislative  permission  ;  and  the  fact  that  some  revenue  is  derived 
by  the  city  from  the  labor  of  the  inmates  is  immaterial  if  the  insti- 
tution is  not  conducted  with  a  view  to  pecuniary  profit,  and  none 
is  in  fact  obtained.  This  is  especially  true  where  such  officers  are 
appointed  and  directed  by  an  independent  board  which  is  in  no 
way  the  agent  of  the  city.' 

But  although  in  New  England  it  seems  that  this  irresponsibility 
is  not  confined  to  nonfeasance  or  to  damage  in  the  highway,  to 
persons  traveling  there,  but  extends  to  cases  of  misfeasance,''  and 
to  injury  to  persons  or  property  outside  of  the  highway,'  yet 
it  is  settled  by  the  cases*  that  there  is  no  such  immunity  with  re- 
gard to  sewers  and  main  drains.  These  belong  to  the  cities  and 
towns,  and  although  the  road  commissioners,  who  are  given  author- 
ity to  maintain  them,  are  probably  no  more  the  agents  of  the 
towns  than  highway  surveyors,  when  exercising  highway  sur- 
veyors' duties,^  still  perhaps  they  have  not  so  exclusive  an 
authority  over  sewers,  and  at  all  events  the  interest  of  the  towns 

Wurran  v.  BMon  (Mass.  May  23,  1890)  8  L.  R.  A.  243. 

^See    Walcolt    v.    Swampscolt,    1   Allen,    101;   Tindley  v.  Salem,  137  Mass. 

171;  Manners  v.  Haverhill,  135  Mass.  165. 
^Holman  v.    Toicmend,  13  Met.  297;  Smith  v.  Dedham,   8  Cush.  522.     See 

Benjamin  v.  Wheeler,  8  Gray,  409,  15  Gray,  486;   Turner  v.  Dartmouth, 

13  Allen,  291;  Bi alley  v.  Southboroiigh,  6  Ciisli.  141. 
*Emery   v.   Lowell,  104  Mas.s.  13,  17;  Merrifield  v.  Worcester,  110  Mass.  216, 

221;  Murphy  v.  Lowell,  124  Mass.  564;  TindLy  v.  Salem,   137  Mass.  17l', 

172;  Staiichfieldy.  Newton,  142  Mass.  110,   lio,  2  New  Eng.    Kep.  526'; 

Child  V.  Boston,  4  Allen,  41,  52. 
*Barney  v.  Lowell,  98   Mass.  570;  Nealley  v.  Bradford,  145  Mass.  561,  564,  5 

New  Eng.  Rep.  515.     See  Caspary  v.  Portland  (Or.  Oct.  27,  1890)24Pac 

Rep.  1036. 


348  IMPOSED  DUTIES,  PERSONAL.  [Part  II 

in  the  sewers  is  so  rlistinct  from  that  of  the  public  at  large  that 
they  are  held,  witli  reason,  to  the  ordinary  responsibilities  of  own- 
ers.' So  if,  by  a  sj'steni  of  drains,  a  city  artificially  diverts  sur- 
face water  from  its  natural  course  and  accumulates  it  upon  the 
plaintiff's  land  in  such  quantities  as  to  create  a  private  nuisance,, 
it  may  be  liable  in  an  action.'*  So  if  it  fails  to  keep  a  culvert 
under  a  highway  in  such  a  condition  as  not  to  obstruct  a  natural 
stream,'  or  for  a  failure  to  keep  sewers  in  repair  after  construc- 
tion." 

In  Bates  v.  ^Vesiborough  (Mass.),  7  L.  R.  A.  156,  decided  Feb- 
ruarv  27,  1890,  a  municipal  corporation  is  declared  to  be  liable  for 
injuries  to  a  land  owner,  caused  by  the  backing  up  of  water  in  a. 
drain  which  he  had  a  right  to  maintain,  by  reason  of  negligence 
on  the  part  of  the  corporation  in  permitting  the  channel  into- 
which  such  drain  opened,  and  which  was  part  of  the  sewerage  system 
of  the  corporation,  to  become  obstructed,  or  in  maintaining  the 
same  too  small  in  size  without  any  defect  in  the  original  plan,  or 
for  the  diversion  by  it  of  surface  water  from  its  natural  course,, 
and  turning  such  quantities  of  it  into  such  channel  that  its  capacity 
for  carrying  off  the  drainage  was  not  equal  to  the  demand  made 
upon  it.  The  rule  is  recognized  that  if  a  private  land  owner  col- 
lects surface  water  into  a  definite,  artificial  channel  and  discharges- 
it  upon  his  neighbor's  land,  he  is  liable  to  an  action.'  And  it  is- 
said  that  when  the  defendant  would  be  liable  for  a  direct  dis- 
charge, he  would  be  liable  also  if  the  water  was  deflected  upon 
the  plaintiff's  land  by  an  obstacle  to  its  direct  course,  when  that 
obstacle  was  set  up  by  the  defendant,  or  was  negligently  allowed 
to  remain  when  he  ought  to  remove  it.  It  would  not  matter  that 
some  water  would  reach  the  obstacle  if  the  defendant's  drain  were 

^Bates  V.  Westhorough  (Mass.  Feb.  27,  1890)  7  L.  R.  A.  156.  See,  furtlier, 
Oliver  v.  Worcesier,  102  Mass.  489,  500;  Haskell  v.  Mw  Bedford,  108  Mass. 
208;  Hand  v.  Brookline,  126  Mass.  324. 

^Manning  v.  Lowell,  130  Mass.  21,  25;  Brayton  v.  Fall  River,  113  Mass.  218;, 
226. 

^Parker  v.  Lowell,  11  Gray,  353. 

*Gould  V.  Boston,  120  Mass.  300;  Phelps  v.  Mankato,  23  Minn.  276;  Brad- 
bury V.  Benton,  69  Me.  194. 

'•White  V.  Ghapin,  12  Allen,  516,  520;  Curtis  y.  Eastern  R.  Co.  98  Mass. 
428  431;  Rathke  v.  Gardner,  134  Mass.  14,  16;  Jackman  v.  Arlingtor^ 
Mills,  137  Mass.  277,  283;  Vassidy  v.  Old  Colony  R.  Co.  141  Mass.  174, 179^ 
1  New  Eng.  Rep.  606. 


I 


Cliap.  XY.]         RULE    OF    LIABILITY    IN    NEW    ENGLAND.  3-i9 

not  there,  provided  the  drain  brings  down  more  than  otherwise 
would  come,  and  causes  the  flooding  of  the  phiintiff's  land  by  this 
■excess.'  The  ordinary  liability  of  a  tort-feasor  who  should 
stop  a  drain  belonging  to  the  plaintiff  Avould  exist  if  he  should 
stop  that  drain  by  causing  an  otherwise  lawful  discharge  of  water 
into  the  outlet  of  the  plaintiff's  drain,  the  M-ater  thus  discharged 
acting  as  a  dam  or  obstacle  to  the  plaintiff's  water.  It  is  well 
settled  that  a  town  has  no  prerogative  to  flood  the  lands  or  to  stop 
the  drains  of  other  land  owners  without  paying  for  it,  and  if  it 
■does  so  without  authority  of  law,  it  is  liable  to  an  action  of  tort." 
While  it  is  true  that  a  town  is  not  liable  for  interrupting  the  flow 
■of  surface  water  or  for  discharging  or  turning  surface  water 
upon  adjoining  land  to  a  considerable  extent,  if  not  through  a 
definite  channel,  yet  this  is  so  because  no  land  owner  is  liable  for 
doing  so.'  So  a  town  is  not  liable  to  an  action  at  common  law 
for  acts  which  are  done  under  a  statute,  for  instance,  in  the  repair 
of  highways,  or,  it  seems,  in  the  construction  of  sewers,  for  which 
the  statute  provides  a  remedy  by  petition."  But  the  case  is 
clearly  different  when  a  city  or  town  has  caused  the  plaintiff's  land 
to  be  flowed  in  a  M-ay  which  would  be  actionable  as  against  a  pri- 
vate person,  and  which  cannot  be  taken  to  have  been  contemplated 
by  the  statute  under  which  it  acts,  or  to  have  been  paid  for  bv 
the  compensation  allowed  in  respect  of  the  original  scheme. 
Thus,  in  the  case  of  sewers,  it  is  settled  that  if  the  plaintiff 
can  prove  that  the  injury  was  caused  bj-  the  negligence  of  the 
city,  either  in  the  original  construction  of  the  sewer,  or  in  not 
keeping  it  free  from  obstructions,  he  may  maintain  an  action 
against  the  city.^ 

'  Curtis  V.  Eastern  R.  Co.  98  Mass.  428. 

^Hill  V.  Boston,  122  Mass.  344,  358.  See  HitcJiins  v.  Frosthurg,  68  Md  100 
10  Cent.  Rep.  539. 

^Emery  v.  Lowell,  104  Mass.  13,  16, 17,  explaining  Barry  v.  Loicell,  8  Allen, 
128,  and  Turner  v.  Dartmouth,  13  Allen,  291.  See  Gannon  v.  Hargadon, 
10  Allen,  106;  Franklin  v.  Fisk,  13  Allen,  211;  Batei  v.  Smith,  100  Mass' 
181;  Morrill  v.  Hurley,  120  Mass.  99. 

*Emery  v.  Lowell,  104  Mass.  13,  e.xplaining  Flagg  v.  Worcester,  13  Gray,  601 ; 
Manning  v.  Loicell,  130  Mass.  21,  22;  Nealle'y  v.  Bradford,  145  Mass.'  56l' 
5  New  Eng.  Rep.  515.  See  Hull  v.  Westfield,  133  Mass.  433;  Perry  v! 
Worcester,  6  Gray,  544;  Benjamin  v.  WJieeler,  8  Gray,  409,  15  Gray,  486. 
'•Emery  v.  Lowell,  104  Mass.  13,  17;  Merrifield  v.  Worcester,  110  Mass.  216, 
221;  Murphy  v.  Loicell,  124  Mass.  564;  Tindley  v.  Salem,  137  Mass.  171^ 
172;  Stanchfield  V.  NeiDton,  142  Mass.  110,  llS,  2  New  Eng.  Rep.  526*; 
Child  V.  Boston,  4  Allen,  41,  52. 


350  IMPOSED   DUTIES,    PERSONAL.  [Part  II. 

But  in  Kennison  v.  Beverly,  146  Mass.  467,  6  New  Eng.  Rep. 
133,  it  was  ruled  that  a  land  owner  has  no  remedy  by  action  against 
a  town  for  an  injury  to  his  premises  from  surface  water  collected 
in  gutters  and  catch-basins  below  the  surface,  and  from  which  the 
water  percolates  through  the  soil,  when  such  gutters  and  catch- 
basins  are  maintained  by  the  town  as  a  part  of  the  system  of  high- 
ways which  it  is  bonnd  to  keep  in  repair.     In  that  case  the  plain- 
tiff complains  that  her  land  is  injured  by  surface  water  which  is 
collected  in  drains  or  gutters  by  the  sides  of  the  streets,  and  is 
thereby  conducted  into  a  pit  or  catch-basin  on  the  side  of  Bartlett 
Street,  directly  opposite  to  her  house,  and  from  8  to  10  feet  there- 
from, whence  the  water  passes  "through  the  soil  and  the  wall  into- 
her  cellar."     There  was  evidence  that  this  catch-basin  was  con- 
structed with  "its  sides  made  of  loose  rocks  nncemented,"  and 
"  with  a  small  pipe  underground  as  its  only  outlet,"  and  that  this 
was  "  completely  choked  up  with  sticks  and  leaves."     The  streets 
were  public  ways.     The  evidence  does  not  show  by  whom  the 
drains  or  gutters  and  the  catch-basin  were  constructed,  but  there 
was  evidence  that  they  were  maintained  by  the  town  as  a  part  of 
the  system  of  highways  which  it  was  bound  to  keep  in  repair.    The 
drains  and  catch-basin  were  within  the  limits  of  the  highways. 
The  principles  declared  in  Turner  v.  Dartmouth^  13  Allen,  291  ;. 
Barry  v.  Lowell,  8  Allen,  1-27;  I'lagg  v.  Worcester,  13  Gray,  601, 
and  Franldin  v.  Fish,  13  Allen,  211,  are  said  to  govern  this  case.' 
It  was  decided  that  if  a  town,  by  its  agents,  or  if  the  highway  sur- 
veyors of  a  town,  in  consti'ucting  or  repairing  highways,  cause  the 
surface  water  to  fiow  upon  the  land  of  an  adjoining  proprietor, 
there  is  no  remedy  by  action.     The  owner  of  the  adjoining  land 
can  protect  himself  by  such  barriers  as  he  may  choose  to  build,  and 
in  some  cases  he  has  a  remedy  under  Pub.  Stat,,  chap.  52,  §  12  or 
§15.     There  is  recognized  no  distinction,  in  respect  to  legal  lia- 
bility, between  an  injury  to  land  from  surface  water  collected  in 
gutters  and  catch-basins,  which  are  below  the  surface  of  the  ad- 
joining land,  and  from  which  the  water  percolates  through  the  soil, 
and  an  injury  from  surface  water  which,  overflowing  the  gutters 
and  catch-basins,  runs  over  the  adjoining  land,  or  wdiich  is  turned 

>  See   Emery  v.  Lowell.  104  Mass.  13,  16;  Jferrifield  v.  Worcester,  110  Mass. 
216.  2M.     But  see  Parker  v.  Larsen  (Cal.  Oct.  30, 1890)  24  Pac.  Rep.  989. 


Chap.  XY.j    LIAUILITY  OF  UNINCORPOKATED  TOWN  OR  VILLAC.E.     351 

directly  upon  it.  Even  if  there  was  such  an  artificial  accniinila- 
tion  of  water  in  such  a  case  as  to  fall  within  White  v.  Chcipin,  12 
Allen,  510,  and  2[<inning  v.  Lowell,  13  Mass.  21,  and  the  troul)]e 
was  due  to  negliu^ence  in  construction  rather  than  to  the  plan 
adopted,  still  it  may  be  that  a  town  will  not  be  liable  to  one  whose 
land  is  flooded  from  the  catch-basin  of  a  city  sewer,  in  the  absence 
of  such  evidence  that  it  did  the  work,  as  was  found  in  Deane  v. 
Bandolph^  132  Mass.  475 ;  ^Yaldron  v.  Haverhill^  143  Mass.  582, 
3  New  Eng.  Rep.  6S3,  and  Doherty  v.  Braintree,  US  Mass.  495,  497. 
It  may  be  that  defects  in  such  a  catch-basin  are  to  be  regarded  as 
defects  in  surface  drainage  within  the  limits  of  the  highway,  and 
therefore  as  defects  in  the  repair  of  the  highway,  the  charge  of 
which  is  committed  by  statute  to  the  highway  surveyors.  High- 
way surveyors  in  the  performance  of  their  statutory  duties  are  held 
to  be  public  officers  and  not  agents  of  the  town,  partly  because  of 
the  town's  want  of  control  over  them,  and  partly  because  the  duty 
to  repair  the  surface  of  highways  is  regarded  as  a  public  duty  fron> 
which  the  town  derives  no  special  advantage  in  its  corporate 
capacity.' 

Section  z^.— Limited  Liability   of  Unincorporated 
Town  or   Village. 

An  unincorporated  town,  unless  made  so  by  statute,  is  not  liable 
for  the  acts  of  its  officers  in  digging  a  ditch  across  the  land  of  one 
of  its  citizens,  by  which  foul  water  was  conducted  over  and  upon 
the  premises  of  another,  and  there  created  a  nuisance,  when  the 
acts  were  done  in  the  execution  of  a  corporate  duty  imposed  by 
law  upon  the  town."  In  case  of  an  incorporated  city  the  creation 
of  such  an  unmitigated  nuisance  would  constitute  prima  facie 
such  a  cause  of  action  as  might  render  it  liable  in  the  absence  of 
any  justification.^  The  authority  and  liability  of  quasi  public 
corporations  known  as  towns,  as  distinguished  from  municipal  cor- 
porations incorporated  under  special  charters,  are  generally  only 

^WalcrAt  V.  Swampscoit,  1  Allen,  101;  Barney  v.    Lowell,  98  Mass.  570,  571; 

Tiiulley  V.  Salem,  137  Mass.  171,  174;  Blanchard  v,  Ayer,  148  Mass.  174* 

176. 
''Seele  v.  Deeving,  79  Me.  343,  4  New  Eng.  Rep.  557. 
^Cumberland  &  0.  0.  Corp.  v.  Portland,  02  Me.  505. 


352  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

sueli  as  are  defined  and  prescribed  by  general  statutory  provisions. 
Some  things  they  may  Lawfully  do,  and  other  things  they  have  no 
authority  for  doing.  To  create  a  liability  on  the  part  of  a  town, 
not  connected  with  its  private  advantage,  the  act  complained  of 
must  be  within  the  scope  of  its  corporate  powers  as  defined  by  the 
statute.  If  the  particular  act  relied  on  as  the  cause  of  action  be 
wholly  outside  of  the  general  powers  conferred  upon  towns,  it  can 
in  no  event  be  liable  therefor,  whether  the  performance  of  the  act 
M'as  expressly  directed  by  a  majority  vote,  or  was  subsequently 
ratified.'  So  a  town  is  not  liable  for  the  unauthorized  and  illegal 
acts  of  its  ofiicers,  even  when  acting  within  the  scope  of  their  du- 
ties,* but  it  may  become  so  when  the  acts  complained  of  were 
illegal,  but  done  under  its  direct  authority  previously  conferi-ed  or 
subsequently  ratified.'  Where  the  allegations  in  an  action  for  in- 
jury do  not  bring  the  acts  complained  of  within  the  scope  of  the 
corporate  powers  of  the  town,  or  aver  that  they  were  performed 
by  its  officers  in  the  execution  of  any  corporate  duty  imposed  by 
law  upon  the  town,  no  liability  is  shown.*  Where  there  is  no  in- 
timation that  the  acts  were  done  in  connection  with  the  making 
or  rej^airing  of  any  highway  or  town  way,  which  the  law  imposed 
upon  the  town,  or  in  relation  to  any  drain  or  sewer  laid  out,  or 
attempted  to  be  laid  out,  by  the  town  authorities,  for  which  it 
might  under  certain  circumstances  become  liable;  ^  or  in  empty- 
ing a  common  sewer  upon  the  property  of  the  plaintiff  outside  of 
the  public  works,  as  in  Locks  cfe  Canals  v.  Loioell,  7  Gray,  223, — 
no  cause  of  action  is  stated.  Allegations  that  the  defendants 
"  wrongfully  opened  and  dug  a  ditch  across  the  main  road  "  in  a 
town  and  into  an  artificial  ditch  in  the  rear  of  a  tripe  and  bone- 
boiling  establishment,  from  which  a  cesspool  of  stagnant  and  filthy 
water  was  then  and  there  collected,  and  then  and  there  continued 
said  ditch  across  the  land  of  a  resident,  200  feet  in  the  direction 
of  the  plaintiffs  laud,  and  out  of  the  natural  course  of  said  water, 
and  onto  the  plaintiff's  land,  and  along  through  the  same  into  his 

^Morrison  v.  Lawrence,  98  Mass.  219. 

^ Brown  v.  Vinalhaven,  65  Me.  403;  Small  v.  Dinmlle,  51  Me.  359, 

^Woodcock  V.  Calais,  66  Me.  234,  and  cases  there  cited. 

^Anthony  v.  Adavu,  1  Met.  284. 

^Estes  V.  China,  56  ]\Ie.  407;  Franklin  Wharf  v.  Portland,  67  Me.  46. 


Chap.  XY.]    LIABILITY  OF  UNINCORPORATED  TOWN  OR  VILLAGE.     353 

millpond,  when  it  is  quite  evident  that  a  town,  independent  of  any 
statutoiT  authority,  has  no  corporate  power  to  dig  ditches  across 
another's  hmd,  and  that  such  an  act  is  ultra  vires,  states  no  liabil- 
ity of  the  town,  and  anv  express  majority  vote  based  on  a  proper 
article  in  a  warrant  calling  a  meeting  of  the  town  directing  such 
acts,  would  create  no  liability  on  the  part  of  the  town.'  A  vil- 
lage charter  empowering  the  building  and  maintaining  of  sewers 
does  not  impose  their  construction  as  a  duty,  but  permits  it  as  a 
privilege,  and  the  village  is  liable  for  damages  from  a  sewer  neg- 
ligently constructed/ 

^CusMng  v.  Bedford,  125  Mass.  52C;  Lemon  v.  Newton,  134  Mass.  476. 
« Winn  V.  Rutland,  53  Vt.  4S1. 

23 


CHAPTER  XYI. 

NAVIGABLE    WATERS;    NEGLIGENCE   IN   AT>MIRA.LTY;    RIGHTS 
AND  THEIR  EXERCISE. 

Sec.  35.    Watercourses,  Lakes  and  Ponds. — Easements  therein. 
See.  36.  Riparian  and  Littoral  Rights. 

Sec.  37.  Rule  as  to  Contrilutory  Negligence  in  Admiralty  Juris- 
diction. 

a.  Negligence  Defined. 

b.  Slight  Negligence. 

c.  Ordinary  Negligence. 

d.  Gross  Negligence. 

e.  Contrihutory  Negligence  and  Proximate  Cause. 

f.  In  Admiralty  Jurisdiction, 

Sec.  38.  Navigable  Waters  ivithin  the  Jurisdiction  of  Admiralty. 
Sec.  39.  Navigable  Waters. — Tidal  Streams. 

Section   db.  — Watercourses,   Lakes    and    Ponds. — 
Easements    therein. 

That  water  is  included  in  the  term  "  land  "  is  taught  by  the  text- 
writers.  "  Land,  terra,  in  the  legal  signification,  comprehendeth 
any  ground,  soile  or  earth  whatsoever,  as  meadows,  pastures,  woods, 
moores,  waters,  marishes,  furses  and  heath.  Lastly,  the  earth  hath 
in  law  a  great  extent  upwards,  not  only  of  water,  as  hath  been  said, 
but  of  ayre  and  all  other  things  even  up  to  heaven,  for  cujus  est 
solum  ejus  est  usque  ad  ccdum,  as  is  holden  14  H.  8,  fo.  12;  22 
Hen.  6,  59  ;  10  E.  4, 14  ;  Registrum  Origin.,  and  in  other  bookes."  ' 
Blackstone  says :  "  The  word  'land '  includes  not  only_  the  face  of 
the  earth,  but  everything  under  it  or  over  it." ' 

So  it  was  held  in  Greye's  Case,  Owen,  20,  that  fish  in  a  pond 
passed,  not  to  the  executor,  but  to  the  heir,  the  court  giving  judg- 
ment that  he  who  had  the  water  should  have  the  fish,  and  they  are 
held  as  part  of  the  realty.^ 

Washburn  says:   "It  may  be  added  in  general  terms  that  every 

1  Co.  Litt.  4a. 

»2  Bl.  Com.  18;  Bouv.  Law  Diet,  title  Land;  1  Greenl.  Cruise,  46. 

'Bouv.  Law  Diet,  title  Pond. 


Chap.  XVI.]         WATEKCOURSES,  LAKES    AND    POMDS.  3o6 

easement  or  servitude  in  lands,  being  an  interest  tlierein,  can  bo 
acquired  only  by  grant  or  vvliat  is  deemed  to  be  evidence  of  an 
oriofinal  grant ;  and  in  this  are  embraced  the  rights  in  one  man  to 
take  away  the  soil  or  profits  of  the  soil  of  another,  called  ^p/'ofit  a 
prendre^  if  such  right  be  of  a  freehold  or  inheritable  character. 
In  the  matter  of  water,  the  owner  of  the  bed  of  a  stream  may  grant 
a  certain  quantity  of  water  to  be  taken  out  of  it,  or  a  certain  amount 
of  water-power  measured  and  ascertained."  But  a  man  may  grant 
trees  growing  on  his  land,  corn  in  the  ground  or  fruit  upon  trees- 
without  deed.  So  of  the  timber,  stone  or  other  materials  of  a 
house  then  standing  upon  his  estate ;  and  the  donee  in  such  case 
may  take  it  away  after  the  donor's  death.  The  law  regards  these 
things  as  so  much  of  the  character  of  chattels  as  not  to  require  the 
formality  of  a  deed  to  pass  property  in  them.' 

The  term  "natural  easement"  is  applicable  especially  to  the 
case  of  flowing  water;  but  an  easement,  when  technically  consid- 
ered, is  an  interest  which  one  man  has  in  the  estate  of  another  by 
grant  or  by  prescription." 

By  the  common  law,  the  right  of  the  riparian  proprietor  to  the 
flow  of  the  stream  is  inseparably  annexed  to  the  soil,  and  passes 
with  it,  not  as  an  easement  or  appurtenance,  but  as  a  part  and  par- 
cel of  it.' 

Every  owner  of  land  through  which  a  natural  stream  of  water 
flows  has  the  right  to  have  it  flow  from  his  land  unobstructed  in 
its  natural  channel,*  unless  such  right  has  been  curtailed  by  grant 
or  adverse  possession.  This  is  said  to  be  a  natural  right  jjuhllGi 
juris.  Language  is  often  used  which  seems  to  imply  that  this 
right  rests  upon  an  easement  which  an  upper  owner  upon  a  stream 
has  in  the  lands  below  him  for  the  passage  of  the  water  over  such 
lands  in  its  natural  channel,  and  this  supposed  implication  has  some 

'  Washb.  Real  Prop.  bk.  3,  chap.  4,  §  3;  Braces.  Yale,  10  Allen,  441. 
^Scriwr  v.  Smith,  100  N.  Y.  471,  1  Cent.  Rep.  767;  Stokoe  v.  Singen,  8  El.  & 

Bl.  36;  Johnson  v.  Jordan,  2  Met.  234. 
^Uix  V.  Haqgin,  69  Cal.  255;  Oardner  v.  Neichurgh,  2  Jobn.s.  Cb.  102;  Elliot 

V.  Fitchhurg  R.  Co.  10  Cusb.  191,  57  Am.  Dec.  85;  Olnei/  v.  Feuner,  2  R. 

I.  211,  57  Am.  Dec.  711;  Stein  v.  Burden,  24  Ala.  130,  60  Am.  Dec.  453; 

Blood  V.  Nashua  &  L.  R.  Co.  2  Gray,  137,  61  Am.  Dec.  444. 
*8turr  V.  Beck,  133  U.  S.  541,  33  L.  ed.  761;  Ferris  v.  Wellborn,  64  Miss.  29; 

Weiss  V.  Oregon  I.  &  S.  Co.  13  Or.  496;    Variek  v.  Smith,  5  Pai^e,  143; 

Palmer  v.  Mulligan,  3  Cal.  319;  People  v.  Piatt,  17  Johns.  211;  Hooker  v. 

Cummings,  20  Johns.  99;  Scriver  v.  Smith,  100  N.  Y.  471, 1  Cent.  Rep.  707. 


35G  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

authoritj  for  its  support."  Sucli  rights  have  some  semblance  to 
easements,  and  no  harm  or  inconvenience  can  probabl}'  come  from 
classifyinor  them  as  such  for  some  purposes.  But  they  are  not,  in 
fact,  real  easements.  Every  easement  is  supposed  to  have  its  origin 
in  grant,  or  prescription,  which  presupposes  a  grant,  and  it  does 
not  seem  reasonable  to  suppose  that  the  owner  of  land  at  the  head 
of  a  stream  has  an  easement  by  grant  or  prescription,  for  its  flow 
over  all  the  laud  of  the  riparian  owners  for  many  miles  to  its 
mouth.  None  of  the  usual  covenants  in  a  deed  would  be  violated 
because  a  natural  stream  of  water  flowed  through  the  hind  and  the 
upper  owners  therefore  had  an  easement  in  such  land. 

In  "Washburn  on  Easements  (p.  19)  it  is  said:  "The  terra  ^natural 
easements,'  as  applicable  especially  to  the  case  of  flowing  water,  is 
often  made  use  of  by  courts  of  common  law,  and  is  not  likely  to 
mislead  the  reader,  inasmuch  as  the  context  usually  shows  in  what 
sense  the  term  is  employed.  But,  as  will  appear  hereafter,  that  an 
easement  when  technically  considered  is  an  interest  which  one  man 
has  in  another's  estate  by  grant  or  its  equivalent,  prescription,  it 
seems  at  first  thought  to  be  inconsistent  to  characterize  what  be- 
longs to  an  estate  as  inseparably  incident  thereto,  and  forming  part 
and  parcel  thereof,  by  the  name  of  easement  or  servitude.  It  may 
be,  in  many  respects  and  perhaps  most  respects,  like  an  easement, 
and  may  be  treated  accordingly,  and  yet  will  hardly  come  within 
the  requirements  of  what  constitutes  an  easement  at  common  law." 
Again,  at  page  276,  the  learned  author,  speaking  of  the  flow  of 
water  in  natural  streams,  says :  "  The  right  of  enjoying  this  flow 
without  disturbance  or  interruption  by  any  other  proprietor  is  one 
jure  naturce  and  is  an  incident  of  property  in  the  land,  not  an  ap- 
purtenance to  it,  like  the  right  he  has  to  enjoy  the  soil  itself  in  its 
natural  state,  unaffected  by  the  tortious  acts  of  a  neighboring  land 
owner.  It  is  an  inseparable  incident  to  the  ownership  of  land, 
made  by  an  inflexible  rule  of  law  an  absolute  and  fixed  right,  and 
can  only  be  lost  by  grant  or  twenty  years'  adverse  possession." 

In  Angell  on  Watercourses,  §  90,  it  is  said  :  "  The  right  to  the 
use  of  the  flow  of  water  in  its  natural  course  and  to  the  mainte- 
nance of  its  fall  on  the  land  of  the  proprietor  is  not  what  is  called 
an  easement,  because  it  is  inseparably  connected  with  and  inherent 
^Cary  v.  Daniels,  5  Met.  236;  Pre»cott  v.  Williams,  5  Met.  429. 


Chap.  XVI.]  WATERCOURSES,  LAKES    A>;D   I'OMDS.  357 

in  the  property  in  the  land;  it  is  a  parcel  of  the  inheritance  and 
passes  with  it."  ' 

llilliard  states  that  a  "  waterconrse  is  regarded  in  law  as  a  pai-t 
of  the  land  over  which  it  flows.  Upon  this  principle  it  will  pass 
with  the  latter  by  a  deed  or  patent,  unless  expressly  reserved.  So 
the  right  to  a  watercoui'se  is  a  freehold  interest  of  which  the 
owner  cannot  be  deprived  but  by  the  lawful  judgment  of  his 
peers  or  due  process  of  law."  "  But  while  it  must  be  admitted 
that  water  in  a  pool  upon  a  man's  own  estate  is  his  property,  and 
part  of  his  real  estate,  it  is  denied  that  he  has  any  property  in  the 
water  of  a  stream  which  passes  over  his  soil  but  a  simple  usufruct 
while  it  passes  along.'  This  use,  it  is  admitted,  however,  author- 
izes the  actual  taking  of  a  reasonable  quantity  of  the  water  for 
domestic,  agricultural  and  manufacturing  purposes.* 

The  right  to  flowing  water  is  now  well  settled  to  be  a  right  in- 
cident to  property  in  the  land.*  It  is  a  right  puhlici  juris,  of 
such  character  that  whilst  it  is  common  and  equal  to  all  through 
whose  land  it  runs,  and  no  one  can  obstruct  it  or  divert  it,  yet,  as 
one  of  the  beneficial  gifts  of  Providence,  each  proprietor  has  a 
right  to  a  just  and  reasonable  use  of  it  as  it  passes  through  his 
land. 

A  watercourse  is  a  living  stream  of  water  ordinarily  flowing  in 
a  certain  direction,  throngh  a  defined  channel  with  bed  and  banks. 
There  is  a  broad  distinction  between  a  stream  of  water  and  those 
occasional  outbursts  of  water  wdiich,  in  times  of  freshets,  fill  up 
the  marshy  places  and  run  over  and  inundate  the  adjoining  lands. 
A  watercourse  need  not  be  shown  to  flow  continuously ;  its  chan- 
nel may  sometimes  be  dry,  but  there  must  always  be  substantial 
indications  of  a  stream  which  is  ordinarily  and  most  frequently  a 
moving  body  of  water.  To  constitute  a  natural  watercourse  there 
must  be  a  bed  and  banks  and  evidences  of  a  permanent  stream  of 
running   water.'     A   channel   made  by   mere   surface  water  re- 

1  See  Scriver  v.  Smith,  100  N.  Y.  471,  1  Cent.  Rep.  763. 
»2Hilliar(l,  Real  Prop.  203. 

2  •'S  Kent,  Com.  439,  445. 

'•Elliot  V.  Fitclibtirg  R.  Co.  10  Cnsh.  191;  Stokoe  v.  Singers,  8  El.  &  Bl.  30; 
ScHver  v.  Smith,  100  N.  Y.  471,  1  Cent.  Rep.  763. 

^Weis  V.  Madison.  75  Ind.  241,  39  Am.  Rep.  135;  Hoyt  v.  Hudson,  27  Wis. 
656,  9  Am.  Rep.  473;  Howard  v.  Ingersoll,  54  U.  S".  13  How.  381-427,  14 
L.  ed.  189,  209;  Rice  v.  Evansville,  108  Ind.  7,  6  West.  Rep.  244. 


358  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

suiting  from  rain  and  snow  is  not  a  watercourse,  unless  there  is 
ordinarily  and  most  frequently  a  moving  body  of  water  flowing 
tlirough  it.  Falling  rain  and  melting  snow  constitute  surface  wa- 
ter, which  the  owner  of  land  upon  which  it  accumulates  may  turn 
into  a  natural  watercourse  through  his  own  land,  or  which  he  may 
by  proper  legal  proceedings  have  carried  off  through  the  adjoin- 
ing land  of  others.' 

There  is  a  distinction  between  spasmodic  overflowing  of  surface 
waters,  and  natural  watercourses.''  A  ravine  cannot  be  termed  a 
natural  watercourse.  It  is  simply  an  outlet  for  surface  water  at 
certain  seasons  of  the  year.  It  has  no  defined  bed  or  channel  with 
banks  and  sides.  It  has  no  permanent  source  of  supply,  and  no 
living  or  spring  water  ever  courses  through  it.  It  is  therefore  not 
governed  by  the  well-settled  rules  applying  to  natural  streams. 
No  right  can  be  claimed  to  run  such  water  upon  the  land  of  an- 
other, or  to  drain  sag-holes  into  a  ravine,  because  it  is  a  water- 
course. It  must  be  governed  by  the  law  relating  to  the  flow 
and  disposition  of  surface  water,  unless  by  the  long  acquiescence 
an  easement  has  been  acquired.^  A  small  natural  body  of  water 
bounded  by  mountains  and  low  swamps,  fed  by  two  sluggish 
streams,  and  shaped  like  the  bowl  of  a  spoon,  being  16  feet  deep 
in  places,  while  the  outlet  is  only  4  feet  deep,  and  having  no 
thread  or  current,  is  a  pond  or  lake,  and  not  a  stream  or  river." 

Section  36. — Riparian  and  Littoral  Rights. 

Riparian  rights  are  those  of  access  to  the  navigable  part  of  the 
river  from  the  front  of  one's  lot ;  to  make  a  landing,  wharf  or  pier 
for  his  own  use  or  for  the  use  of  the  public, — subject  to  such  gen- 
eral rules  and  regulations  as  the  Legislature  may  see  proper  to  im- 
pose for  the  protection  of  the  rights  of  the  public, — and  to  exclude 

^Stanchfield  v.  Newton,  143  Mass.  110,  2  New  Eng.  Rep.  526;  Hill  v.  Gincin- 
naii  W  &  M.  R.  Co.  109  Ind.  511,  8  West.  Rep.  47;  Rice  v.  Evamville, 
108  ind.  7,  6  West.  Rep.  244;  Jeffers  v.  Jeffers,  107  N.  Y.  650,  9  Cent. 
Rep.  846;  Barklcy  v.  Wilcox,  86  N.  Y.  144;  Bailey  v.  Schnitmis,  45  N.  J. 
Eq.  178,  11  Cent.  Rep.  737;  Ferris  v.  Wellborn,  64  Miss.  29;  Chicago,  K.  & 
W.  R.  Co.  V.  Morroio,  42  Kan.  339. 

''Taylor  v,  Fickas,  64  Ind.  167. 

^Gregory  v.  Bush,  64  Mich.  37,  7  Wast.  Rep.  169. 

*Qouverneur  v.  National  Ice  C«.  57  Hun,  474. 


'^^^ 


Chap.  XVI.]  RIPARIAN    AND    LITTORAL    RIGHTS.  359 

tlie  public  from  the  use  of  the  banks,  except  with  his  consent,  ex- 
cept iu  cases  of  necessary  landing  in  an  emergency  when  navigat> 
ing  the  water.*  The  owner  can  be  deprived  of  his  right  of  access 
only  in  accordance  with  established  law,  and,  if  necessary  that  it 
be  taken  for  public  use,  upon  due  compensation," 

The  owner  of  an  estate  upon  the  tide  waters  is  entitled  to  com- 
pensation, not  only  for  the  land  actually  taken  for  the  construction 
of  a  public  road,  but  also  for  the  change  of  his  premises  from 
river-side  to  road-side  property,  including  his  individual  and  par- 
ticular right  to  use  the  shore  of  the  river  in  which  he  had  no  pro- 
prietary interest.^  But  this  right  does  not  include  the  right  to 
redress  for  an  obstruction  not  against  the  front  of  the  plaintiff's 
land,  even  when  it  entirely  closes  the  highway/  A  riparian 
owner  on  a  river,  whether  navigable  or  not  navigable,  is  entitled 
to  recover  damages  from  a  raih-oad  company  for  obstruction  of 
access  to  his  property  from  the  river/  A  littoral  or  sea  shore 
proprietor,  like  a  riparian  proprietor,  has  a  right  to  the  water 
frontage  belonging  by  nature  to  his  land,  although  the  only  prac- 
tical advantage  of  it  may  consist  in  the  access  thereby  afforded  him 
to  the  water  for  the  purpose  of  using  the  right  of  navigation.' 
The  principle  upon  which  the  rights  of  littoral  proprietors  to  lands 
reclaimed   from  the  sea  are  determined  is  that  lands  reclaimed 

Wompion  V.  EawJcins  (Ala.  June  17,  1890)  9  L.  R.  A.  387;  Button  v.  Strong, 
68  U.  S.  1  Black,  25,  17  L.  ed.  29;  St.  Paul  &  P.  R.  Co.  v.  Schurmeier,  74 
U.  S.  7  Wall.  272,  19  L.  ed.  74;  At'^e  v.  Northwestern  JJ.  Packet  Co.  88 
U.  S.  21  Wall.  389,  22  L.  ed.  619;  Gould,  Waters,  278. 

^Kane  v.  Metropolitan  El.  R.  Co.  (Ct.  App  Jan.  13, 1891)  34  N.  Y.  S.  R.  876,  883, 
overruling  Gouldv.  Hudson  River  R.  Co.  6  N.  Y,  522;  Weber  v.  State  Har- 
bor Comrs.  85  U.  S.  18  Wall.  57,  21  L.  ed.  798;  Atlee  v.  Northwestern  U. 
Packet  Co.  88  U.  S.  21  Wall.  389,  22  L.  ed.  619;  Richardson  v.  Boston,  65 
U.  S.  24  How.  188,  16  L.  ed.  625;  Baltimore  &  0.  R.  Co.  v.  Chase,  43  Md. 
23;  Harrison  v.  Sterett,  4  Har.  &  McH.  540;  Diedrich  v.  Northioe.^tern 
Union  R.  Co.  42  Wis.  248;  Delaplaine  v.  Chicago  &  N.  W.  R.  Co.  Id.  214; 
Meyers  v.  St.  Louis,  8  Mo.  App.  266;  Carron  v.  Baltimore,  32  U.  S.  7  Pet. 
243,  8L.  ed.  672;  Clark  v.  Peckham,  10  R.  I.  35,  38,  9  R.  I.  455;  Morrill 
V.  St.  Anthony  Falls  Water-Power  Co.  26  Minn.  222;  Norfolk  v.  Cooke,  27 
Gratt.  430,  435. 

^BuccleucJi  V.  Metropolitan  Board  of  Works,  L.  R.  5  H.  L.  418;  Case  v.  Lof- 
tus,  39  Fed.  Rep.  730,  5  L.  R.  A.  687. 

^Bailey  v.  Philadelphia,  W.  <&  B.  R.  Co.  4  Harr.  (Del.)  389;  Boston  &  W.  R. 
Corp.  V.  Old  Colony  R.  Corp.  12  Cush.  605. 

^North  Shore  R.  Co.  v.  Pion  (Eng.  Privy  Council,  August  1,  1889)  12  Mon- 
treal Leg.  News,  395. 

*Gould,  Waters,  §  149;  Buceleuch  v.  Metropolitan  Board  of  Works,  L.  R  5 
H.  L.  418;  Midryy.  Norton,  100  N.  Y.  424.  1  Cent.  Rep.  752. 


360  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

from  the  sea  are  apportionable  among  the  littoral  owners  accord- 
ing to  the  lateral  lines  of  uplands  possessed  by  them.'     As  to  op- 
posite, as  M'ell  as  upper  and   lower,  riparian  proprietors,  each  is 
entitled  to  the  use  of  the  stream  so  far  as  is  reasonable,  conforma- 
ble to  the  usages  and  wants  of  the  community,  and  not  inconsis- 
tent with  a  like  reasonable  use  by  the  other  proprietors.^     A  ripa- 
rian owner  has  the  right  to  use  the  stream  and  divert  its  waters  if 
he  does  not  do  so  to  a  material  and  appreciable  degree,  and  leaves 
sufficient  for  the  use  of  other  riparian  proprietors ;  but  not  to 
such  an  extent  as  to  appreciably  or  materially  lessen  the  stream.^ 
While  the  authorities  are  not  in  entire  harmony  in  reference  to 
the  respective  rights  of  navigators  of  public  streams  above  the  ebb 
and  flow  of   the  tide,  and  of  riparian  owners,  the  better  opinion 
seems  to  be  that  the  right  to  the  use  of  the  stream  as  a  highway, 
and  to  land  for  purposes  of  receiving  and  discharging  freight  and 
passengers,  are  distinct,  and  those  navigating  the   river  have  no 
right,  as  incident  to  the  right  of  navigation,  to  land  upon  and  use 
the  bank  for  the  purpose  of  loading  and  unloading  vessels,  with- 
out the  consent  of  the  owner,  unless  in  cases  of  necessity.'' 

In  Washburn  on  Easements  (p.  554)  the  author  observes :  "In 
regard  to  the  right  to  land  upon  other  points  of  the  banks  of  a 
navigable  stream  than  those  which  have  in  some  way  become  pub- 
lic landings,  the  law  would  seem  to  confine  it  to  cases  of  necessity^ 
where,  in  the  proper  exercise  of  the  right  of  passage  upon  the 
stream  of  water,  it  becomes  unavoidable  that  one  should  make  use 
of  the  bank  for  landing  upon  or  fastening  liis  craft  in  the  prose- 
cution of  his  passage." 

Section  37.— Rule  as  to  Contributory  JVegUgence  in 
Admiralty  Jurisdiction. 

We  have  seen  that  mere  surface  water — that  which  does  not  run 
in  any  definite  course  or  confined  channel — is  regarded  as  a  com- 

^Deerfield  v.  Arms,  17  Pick.  41;  Wonson  v.  Wonson,  14  Allen,  85;  Thornton 
V.  Grant,  10  R.  I.  477;  Emerson  v.  Taylor,  9  Me.  44;  O'Donnell  v.  Eelsey, 
4"Saadf.'203,  affirmed,  10  N.  Y.  412.  See  also  Ang.  Tide  Waters,  258-, 
Mulry  V.  Norton,  100  N.  Y.  424,  1  Cent.  Rep.  752;  Gould,  Waters,  §§  162- 
165.      . 

^Pinney  v.  Luce,  44  Minn.  3G7. 

^Ne^D  York  Rubber  Co.  v.  Bothery  (Sup.  Ct.  July  18,  1890)  32  N.  Y.  S.  R.  905. 

*Compton  V.  Hawkins  (Ala.  June  17,  1890)  9  L.  R.  A.  387. 


Chap.   XVI.]       CONTRIBUTORY    NEGLIGENCE    IN    ADMIRALTY.  3GI 

men  enemy,  ao;ainst  which  any  land  owner  affected  by  it  may  fight,' 
but  that,  in  doing  so,  regard  must  be  had  to  another  recognized 
maxim  of  law,  Sic  utere  tuo  ut  alienum  non  loedas.^  But  he  may 
not  collect  it  in  a  ditch,  etc.,  and  discharge  it  upon  the  land  of 
another.* 

In  his  efforts  to  protect  himself  from  injury  from  flood,  whether 
from  rain-fall,  or  ovei'flow  of  a  watercourse,  or  the  giving  way  of 
embankments  or  mill-dams,  or  in  his  attempts  to  utilize  flowing 
water,  or  in  the  exercise  or  vindication  of  any  of  his  rights  as  a 
riparian  owner,  he  must  be  watchful  that  his  negligent  acts  do  not 
involve  unnecessary  injury  to  his  neighbors. 

a.  JYegligence  Defined. 

^Negligence  in  a  legal  sense  is  a  failure  to  observe  for  the  pro- 
tection of  the  interests  of  another  that  degree  of  care,  precaution 
and  vigilance  which  the  circumstances  demand,  whereby  such  other 
person  suffers  injury.*  It  is  the  omission  to  do  something  which 
a  reasonable  man,  guided  by  those  considerations  which  ordinarily 
regulate  the  conduct  of  human  affairs,  would  do,  or  doing  some- 
thing which  a  prudent  and  reasonable  man  would  not  do.^  The 
basis  of  liability  in  negligence  cases  is  the  violation  of  some  legal 
duty  to  exercise  care.* 

b.  Slight  Kegligence. 

One  who  does  an  act  involving  the  least  possible  danger  to  oth- 
ers is  only  required  to  use  a  slight  degree  of  care  in  its  perform- 
ance, and  that  degree  of  caution  constitutes  wliat  is  called  "sh'o-ht 
care,"  and  the  want  of  it  "slight  negligence."     It  is  that  degree 

'^Hoyt  V.  HufUon,  27  Wis.  656;  EosJier   v.  Kansas  City,  St.  J.  &  G.  B.  R.  Co 

60  Mo.  333. 
"^Gannon  v.  Hargadon,  10  Allen,  106;  Ooodale  v.  Tattle,  29  N.  Y.  459. 
^Rathke  v.  Gardner,   134  Mass.  14;  Farrel  v.  London,  12  U.  C.  Q.  B.  343; 

Reeves  v.  loronto,  21  U.  C.  Q.  B.  157;  Perdue  v.  Chinguacousy,  25  U. 

C.  Q.  B.  61. 
^Diamond  State  Iron  Works  v.  Giles  (Del.  Oct.  27,  1887)  9  Cent.  Rep.  577; 

Pennsylvania  R.  Co.  v.  Peters,  116  Pa.  206.  8  Cent.  Rep.  405;  Lehigh  &  W. 

B.  Goal  Co.  V.  Lear  (Pa.  April  25,  1887)  8  Cent.  Rep.  107. 
'^Blyth  V.  BirmingJiam  Waterworks  Co.  11  Exch.  783. 
'Cusick  V.  Adams,  115  N.  Y.  55. 


•362  IMPOSED    DUTIES,  PERSONAL.  Part  II. 

of  diligence  which  a  person  of  common  sense,  not  a  skilled  work- 
man or  expert  in  any  particular  business  or  employment,  would 
•exercise  in  such  employment;  such  care  of  himself  or  of  his  prop- 
erty, as  one  habitually  careless  would  take.'  The  absence  of  this 
■degree  of  attention  is  called  slight  negligence. 

c.  Ordinary  JVegligence. 

Where  circumstances  clearly  demand  precautionary  measures, 
and  an  injury  arises  from  an  omission  of  them,  this  is  want  of  or- 
dinary caution  and  skill.''  Ordinary  care  is  that  degree  of  watch- 
fulness which  is  exercised  by  ordinarily  prudent  persons  under 
similar  circumstances."  It  isw  hat  in  the  particular  case  involved 
would  be  the  conduct  of  a  majority  of  men  in  like  circumstances. 
It  is  such  a  degree  of  caution  as  will  be  in  due  proportion  to  the 
injury  or  danger  to  be  avoided.*  The  measure  of  ordinar}^  care 
is  such  care  as  must,  by  common  prudence,  be  usually  exercised  in 
positions  of  like  exposure  and  danger.'  Ordinary  negligence  is 
the  want  of  this  degree  of  care. 

d.  Gross  JYegUgence. 

"Where  it  is  said  that  great  care  is  demanded,  it  is  intended  to 
indicate  that  degree  of  practical  attention  which  persons  of  the 
greatest  prudence  and  skill  usually  exercise  in  similar  cases.  It 
answers  to  a  degree  of  responsibility  above  that  exacted  of  an  or- 
dinarily prudent  man,  and  below  that  exercised  by  an  insurer.  It 
is  the  exercise  of  the  greatest  uniform  practical  diligence  and  care, 
and  what  this  is,  in  any  given  case,  is  tested  by  that  which  men  of 
the  greatest  prudence  exhibit  under  like  circumstances.  In  a  par- 
ticular business  it  is  the  skill  and  care  usually  exercised  by  an  ex- 

^Louixville  &  N.  R.  Go.  v.  McCoy,  81  Ky.  403;  Mark  v.  Hudson  River  Bridge 
Co.  103  N.  Y.  28,  4  Cent.  Rep.  203. 

^MeOrew  v.  Stone,  53  Pa.  436;  Thoman  v.WincJiester,  6  N.  Y.  397;  Jackson- 
ville St.  R.  Co.  V.  Chappell,  21  Fla.  175. 

^Needham  v.  Louisville  &  N.  R.  Co.  85  Ky.  423;  Anstin  &  N.  R.  Co.  v.  Beatty, 
73  Tex.  592;  Chicago  &  A.  R.  Co.  v.  Adler,  129  111.  335;  Richmond  &  D. 
R.  Co.  V.  Howard,  79  Ga.  44;  Toledo  &  W.  R.  Co.  v.  Goddard,  25  lud.  185. 

*Brnst  V.  Hudson  River  R.  Co.  24  How.  Pr.  97. 

^Gaynor  v.  Old  Colony  &  N.  R.  Co.  100  Mass.  208;  Hill  v.  Smith,  39  Conn. 
210;  Reynolds  v.  Burlington,  52  Vt.  300. 


■Chap.  XVI.]    CO^'TKIBUTOEY  NEGLIGENCE    IN   ADMIRALTY.  303 

pert.'     Such  care  is  required  of  carriers  and  otliers  who  employ 
dangerous  agencies  for  their  own  profit. " 

So  far  as  it  is  possible  to  define  gross  negligence  it  may  be  said 
to  be  such  absence  of  care — when  the  consequences  of  such  want 
of  care  would  appear  probable,  if  tlie  slightest  thought  were  given, 
but  where  it  is  not  given — as  will  charge  the  person  so  neg]i<?ent, 
not  necessarily  with  an  intention  to  inflict  the  injury  resultino- 
from  his  negligence,  but  with  the  same  responsibility  as  though  he 
had  actually  intended  it.  Inasmuch  as  his  entire  want  of  care  re- 
sults to  otliers  in  as  much  injury  as  though  he  had  intended  the 
harm  and  damage,  it  is  just  that  he  shall  suffer  the  same  pecuniary 
consequences  as  though  guilty  in  intent.  He  is  punished  civilly, 
and  those  who  suffer  are  reinil)ursed,  for  the  consequences  of  his 
entire  want  of  care,  when  he  should  have  anticipated  the  result 
thereof,  but  for  his  inexcusable  thoughtlessness. 

-e.  Contributory  JS^egUgenoe  and  Proximate  Cause. 

It  becomes  important  in  considering  the  law  of  negligence,  as  ap- 
plied to  the  use  of  living  streams,  to  ascertain  what  are  navigal)le 
waters  of  the  United  States  in  such  a  legal  sense  as  to  come  within 
the  admiralty  jurisdiction,  for  if  navigable  waters  be  within  ad- 
miralty jurisdiction,  the  rule,  which  prevails  at  common  law,  that 
■one  cannot  recover  for  an  injury  caused  by  his  own  negligence,  or 
where  his  own  negligence  contributed  to  the  result,  even  though 
the  defendant  was  in  fault,'  does  not,  in  its  full  force,  apply. 

^Houston  &  T.  C.  R.  Co.  v.  Gorbett,  49  Tex.  573;  Carroll  v.  Staten  Mand  R. 
Co.  58  N.  Y.  126;  Louisville  City  R.  Co.  v.  Weams,  80  Ky.  420;  Coddinqton 
V.  Brooklyn  C.  R.  Co.  102  N.  Y.  66,  2  Cent.  Rep.  913;  Moreland  v.  Buxton 
&  P.  R.  Corp.  141  Mass.  31,  1  New  Eng.  Rep.  909;  The  New  World  v. 
King,  57  U.  S.  16  How.  469,  14  L.  ed.  1019;  ^/laj-p  v.  Gray,  9  Bine  457- 
Caldtcell  v.  New  Jersey  S.  B.  Co.  47  N.  Y.  282. 

^Higgins  v.  Beioey,  107  Mass.  494;  Palmer  v.  Delaware  Jb  K  Canal  Co  120 
N.  Y.  170. 

^Allen  V.  Mai7ie  Cent.  R.  Co.  82  Me.  Ill;  JocJiem  v.  Robimon,  72  Wis.  199; 
Riclimond  &  D.  R.  Co.  v.  Pickleseimer,  85  Va.  798;  Louisville  &  N.  R.  Co'. 
V.  Hall,  87  Ala.  708;  Trousduir  v.  Pacific  Coast  S.  iS.  Co.  80  Cal  521- 
Phillips  V.  Ritchie  County  Ct.  31  W.  Va.  477;  Atkyn  v.  Waba.^h  R.  Co.  41 
Fed.  Rep.  198;  Kyne  v.  Wilmington  &  N.  R.  Co.  (Del.  May  31.  1888)  13 
Cent.  Rep.  391;  Qerty  v.  Haley,  29  W.  Va.  98;  Schoeirfeld  v .  Milwaukee 
City  R.  Co.  74  Wis.  433;  Moore  v.  Central  R.  Co.  24  N.  J.  L.  208;  Run- 
yon  V.  Central  R.  Co.  25  N.  .J.  L.  556;  Drake  v.  Mount,  33  N.  J.  L.  441; 
Pennsyhania  R.  Co.  v.  Matthews,  36  N.  J.  L.  531;  Delaware,  L.  &  W.  R 
Co.  V.  To  fey,  38  N.  J.  L.  525 ;  East  Tennessee,  V.  &  G.  R.  Co.  v.  Htiii,  88 
Tenn.  33. 


364  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

At  common  law  one  who  suffers  an  injury  from  the  want  of 
that  ordinary  care  wliieh  a  prudent  man  would  have  exercised 
under  the  circumstances,  may  be  said  to  have  caused  the  injury  by 
his  contributory  negligence.  "  Perhaps  the  rule  may  be  stated  thus: 
One  w'ho  suffers  an  injury,  to  which  the  mere  negligent  act  of  an- 
other has  contributed,  cannot  recover  therefor,  if  his  own  want  of 
such  care  as  a  prudent  man  would,  under  the  circumstances,  have 
exercised,  or  the  want  of  the  exercise  of  such  care  on  the  part  of 
someone  for  whose  negligence  he  is  responsible,  has  proximately 
contributed  also  to  the  result.  Bat  if  another  person,  aware  of  his 
negligence,  is  guilty  of  such  conduct,  contributing  to  the  injury,, 
as  implies  an  indifference  to  the  consequences  to  him,  he  may 
recover. 

The  test  of  contributory  negligence  or  want  of  due  care  is  not 
found  in  the  failure  to  exercise  the  best  judgment  or  to  use  the 
wisest  precaution,  but  allowance  may  be  made  for  the  influences 
ordinarily  governing  human  action,  as  what  would  under  some  cir- 
cumstances be  want  of  reasonable  care  may  not  be  such  under 
others.'  The  contributory  negligence  which  prevents  recovei-y 
for  an  injury  must  be  such  as  co-operates  in  causing  the  injury 
and  without  which  the  injury  could  not  have  happened."  But  it 
need  not  be  the  sole  cause  of  the  injury;  it  is  sufhcient,  if  it  he 
one  of  two  or  more  concurring  efficient  causes,  to  bar  recovery.* 
But  any  negligence  of  the  plaintiff,  however  slight,  that  contrib- 
uted to  the  injury,  precludes,  at  common  law,  his  recovery.* 

In  WaMin  v.  Zmdon  d;  S.  W.  R.  Co.,  L.  K  12  App.'Cas.  51, 
Lord  Fitzgerald  defines  contributory  negligence  as  "  the  ab- 
sence of  that  ordinary  care  which  a  sentient  being  ought  reason- 
ably to  have  taken  for  his  own  safety,  and  which,  had  it  been 
exercised,  would  have  enabled  him  to  avoid  the  injury  of  which  he 
complained ;  or  the  doing  of  some  act  which  he  ought  not  to  have 
done,  and  but  for  which  the  calamity  would  not  have  occurred." 
Contributory  negligence  which  will  defeat  a  recovery  consists  in 

'Lent  V.  NeiD  York  0.  <&  H.  E.  R.  Co.  120  N.  Y.  467. 

'^LeMyli  Valley  R.  Co.   v.  Greiner.  113  Pa.  600,  4  Cent.  Rep.  898;  Fernandas 

V.  Sacramento  City  R.  Co.  52  Cal.  45. 
^North  Birmingham  Street  R.  Co.    v.  Calderwood  (Ala.  Jan.  31,  1890)  7  So, 

Rep.  360. 
^Sihoenfeld  v.  Miboaukee  City  R.  Co.  74  Wis.  433. 


Cliap.   XYL]    CONTRIBUTORY  NEGLIGENCE  IN  ADMIRALTY.  305 

eucli  acts  or  omissions  on  the  part  of  the  plaintiff,  amonntinor  to  a 
want  of  ordinary  care,  as,  concurring  or  co-operating  with  the  neg- 
ligent acts  of  the  defendant,  are  a  proximate  cause  or  occasion  of 
the  injury.' 

3lr.  Justice  Agnew  in  FairhanTcs  v.  Keri\  70  Pa.  89,  says : 
*'  Many  cases  illustrate,  but  none  define,  what  is  a  proximate,  and 
what  a  remote,  cause."  A  great  array  of  cases  state  the  rule 
quite  satisfactorily  as  follows:  "It  must  appear,  in  order  to 
defeat  the  right  of  action,  that  but  fur  the  plaintiff's  negligence 
operating  as  an  efficient  cause  of  the  injury,  in  connection  with 
the  fault  of  the  defendant,  the  injui-y  would  not  haye  happened. "'"' 
Where  the  cause,  concurring  with  the  negligence  of  the  defend- 
ant,— as  where  there  is  a  defect  in  the  highway, — to  produce  injury 
was  a  natural  cause,  or  a  pure  accident,  for  which  no  person  was 
responsible,  the  one  guilty  of  the  negligence  will  be  liable.'  But 
where  the  concurring  cause  is  the  independent,  wrongful'  act  of  a 
responsible  person,  such  act  arrests  causation,  being  regarded  as  the 
proximate  cause  of  the  injury,  the  original  negligence  being  con- 
sidered merely  as  its  remote  cause.  As,  in  the  law,  it  is  the  prox- 
imate and  not  the  remote  cause  which  is  regarded,  he  Mdio  is 
guilty  of  tbe  original  negligence  is  not  chargeable,  but  redress 
must  be  sought  from  him  who  directly  caused  the  injury. 

In  Rov^ell  v.  Lowell,  7  Gray,  100,  in  which  the  plaintiff,  while 
passing  out  of  the  post-office  building,  slipped  from  the  steps,  which 
were  outside  the  limits  of  the  street  and  for  the  condition  of  \yhieh 
the  defendant  was  not  responsible,  to  the  sidewalk,  and  then  con- 
tinued slipping  till  she  fell  and  was  injured,  both  the  steps  and 
sidewalk  being  so  covered  with  ice  as  to  be  slippery  and  unsafe, 
and  having  remained  so  more  than  twenty-four  hours,  the  court 
held  the  defendant  not  liable  ;  and  in  distinguishing  the  case  from 

^Richmond  &  D.  R.  Co.   v.  Pickleseimer,  85  Va.  798;  Buiterfield  v.  Forrester, 

11  East,  60;  Tvff  v.  Warman,  5  C.  B.  N.    S.  573;  Pennsylvania  R.  Co. 

V.  Asjiell,  23  Pa.  147;  Peverly  v.  Bvston,  136  Mass.  366;  Teire  Uaute  <t  I. 

R.  Co.  V.  Graham.,  95  Ind.  286. 
"See  Paducah  &  M.  R.  Co.  v.  HoeJil,  12  Bush  (Ky.)  41;  Kentnel-y  Cent.  R.  Co. 

V.  Tliomas,  79  Ky.  160;  Houston  &  T.  C.  R.  Co.  v.  C/emmons,  55  Tex.  88; 

Eickey  v.  Boston   &  L.  R.  Co.  14  Allen,  429;    Colorado   Cent.    R.  Co.  v." 

Holmes,  5  Colo.  197. 
^Hampson   v.  Taylor,  15  R.  I.  83,  85,  1  New  Eng.  Rep.   117.   3   New  Ene 

Rep.  640. 
^Kidder   v.  Dunstable,  7  Gray,  104;  Shepherd  v.  Chelsea,  4  Allen,  113;  Empo- 

na  V.  Schmidling,  33  Kan.  485;  Mahogany  v .  Ward,  16  R.  I. . 


366  IMPOSED  DUTIES,  PERSONAL.  [Part  11^ 

Palmer  v.  Andover,  2  Cush.  600,  one  of  the  cases  supporting  the- 
rule  applied  in  Hampson  v.  Taylor^  15  R.  I.  83,  1  New  Eng. 
Rep.  117,  said:  "AYe  think  the  only  exception  to  the  rule  that  tlie 
plaintiff  cannot  recover  unless  the  defect  in  the  highway  was  the 
sole  cause  of  the  injury,  must  be  one  where  the  contributing  cause 
was  a  pure  accident,  and  one  which  common  prudence  and  sagac- 
ity could  not  have  foreseen  and  provided  against." 

In  Kidder  v.  Dundahle,  1  Gray,  104,  an  action  to  recover  dam- 
ages for  an  injury  from  a  defect  in  a  highway,  the  court  says  : 
"  The  alleged  defect  in  the  highway  here  was  a  neglect  to  remove- 
the  snow  therefrom,  and  the  injury  is  alleged  to  have  been  re- 
ceived by  the  upsetting  of  the  sleigh  in  which  the  plaintiff  was 
driving  upon  the  road.  It  appears  by  the  facts  stated  that  the 
plaintiff,  while  thus  driving  on  the  road,  met  one  Coburn  driving 
a  one-horse  sled  with  stakes  in  the  sides,  and,  as  Coburn  testifies,  he 
believes  that,  as  he  drove  by,  one  of  the  stakes  in  his  sled  struck 
the  top  of  the  back  part  of  the  sleigh  and  overturned  it,  he  having 
tui-ned  to  the  right  as  far  as  he  safely  could  on  account  of  the 
snow  in  the  road.  The  defendant,  however,  contended  that  the 
injury  was  caused  wholly  on  his  part  by  the  carelessness  or  negli- 
gence of  Coburn,  and  asked  the  court  to  instruct  the  jury  that  if 
such  was  the  case  the  plaintiff  could  not  recover,  and  this  prayer 
for  instruction  was  refused.  The  case  stated  by  the  d  jf endant 
was  one  of  injury  resulting  from  the  combined  effect  of  two  dis- 
tinct causes,  and  one  of  these  proceeding  from  a  third  person  whO' 
would  be  responsible  for  any  injury  he  might  unlawfully  occasion. 
The  court  are  of  the  opinion  that  if  this  injury  was  caused 
wholly  by  Coburn  or  was  the  combined  result  of  the  defect  in  the 
highway  and  carelessness  or  negligence  on  the  part  of  Coburn  in 
driving  his  vehicle,  whereby  the  stakes  on  his  sled  struck  the 
sleigh  of  the  plaintiff  and  overturned  it,  the  defendants  are  not 
chargeable  therefor."  So,  too,  in  Shepherd  v.  Chelsea^  4  Allen,  113, 
where  plaintiff  sued  for  injury  to  plaintiff's  wife  by  reason  of  a  de- 
fective highway,  it  was  proved  and  admitted  for  the  purposes  of 
the  trial  that  boys  had  been  in  the  habit  of  sliding  on  sleds,  with- 
out interruption,  on  the  sidewalk  which  the  defendants  were  bound 
to  keep  in  repair,  and  had  made  the  snow  and  ice  on  it  so  slippery 
as  to  be  dangerous  ;  that  while  plaintiff's  wife  was  walking  on  the- 


Chap.  XVI.]  CONTRIBUTOKY    NEGLIGENCE  IN  ADMIKALTY.  oG7 

sidewalk  on  a  dark  night,  a  boy  sliding  ran  upon  her  with  his  sled 
and  threw  her  down,  whereby  she  received  the  injury  complained 
of ;  that  she  did  not  see  the  boy  or  sled  till  struck,  and  by  reason 
of  the  slippery  condition  of  the  sidewalk  could  not  have  avoided 
him.  The  court  held,  affirming  the  prior  cases  of  Rowell  v. 
Lowell^  7  Gray,  100,  and  Kidder  v.  Dunsiahle,  7  Gray,  104,  that, 
as  it  did  not  appear  that  plaintiff  was  injured  by  the  alleged  defect 
in  the  way,  but  it  was  clear  that  the  accident  happened  in  part 
from  the  unlawful  or  careless  act  of  a  third  person,  the  action 
could  not  be  sustained. 

In  Mahogany  v.  Ward,  16  E..  I. ,  where  B,  driving  on  the 

highway  and  meeting  plaintiff,  did  not  turn  to  the  right  of  the 
centre  of  the  road  as  required  by  the  statute,  and  the  plaintiff  was 
in  consequence  compelled  to  drive  upon  the  side  of  the  road  and 
w^as  injured  by  colliding  with  a  post  standing  outside  of  and 
close  to  the  traveled  carriage  way.  the  wrongful  act  of  B  was 
treated  as  the  proximate  cause  of  the  injury,  and  the  town  was  not 
liable,  the  court  holding  that  the  negligence  of  a  responsible  agent 
intervening  between  the  defendant's  negligence  and  the  injury 
suffered  breaks  the  causal  connection  between  the  two ;  but  that,  if 
the  intervening  act  or  negligence  is  a  natural  or  probable  result  of 
the  original  negligence,  the  latter  will  be  regarded  as  the  pi-oxi- 
mate  cause  of  the  injury.*  The  court  said :  "  We  do  not  think  that 
it  can  be  reasonably  held  that  the  town  ought  to  have  anticipated, 
as  a  probable  result  of  permitting  the  post  to  remain  by  the  side  of 
the  road,  that  someone  would  be  forced  against  it  by  the  wrongful 
and  unlawful  conduct  of  another  in  keeping  the  middle  of  the 
traveled  path  instead  of  turning  to  the  right  of  the  centre  of  it, 
as  required  by  the  statute." 

In  Farker  v.  Cohoes,  10  Hun,  531,  affirmed,  74  N.  Y.  610,  the 
water  commissioners  of  the  City  of  Cohoes,  acting  under  authority 
of  law,  made  an  excavation  in  one  of  the  streets  for  the  purpose 
of  laying  water  pipes  for  public  and  general  use,  and,  in  so  doing, 
caused  the  road  to  be  torn  up  in  laying  the  drain,  and  also  brouglit 
onto  the  street  a  heap  of  sand  for  use  in  the  work  ;  at  the  end  of 

^Lane  v.  Atlantic  Worku,  111  Mass.  136,  139,  141;  Origgs  v.  Fleckenstein,  14 
Minn.  81;  Clark  v.  Chambers,  L.  R.  3  Q.  B.  Div.  327;  Burrows  v.  Coke 
Co.  L.  R.  7  Excli.  96,  97;  Dixon  v.  Bell,  5  Maule  &  S.  198.  199;  lUidge  v. 
Goodwin,  5  Car.  &  P.  190,  192;  Lynch  v.  Nurden,  5  Jiir.  797. 


368  IMPOSED  DUTIES,  PERSONAL.  [Part   II. 

tlie  d:iy  barriers  of  planks  were  placed  on  the  sidewalk  supported 
by  barrels  in  the  street,  to  prevent  vehicles  from  entering  the 
highway.  Subsequently  some  person,  without  the  authority  or 
knowledge  of  the  commissioners,  removed  one  of  the  barriers 
and  the  plaintiff  in  the  darkness  drove  through  the  opening 
thus  made,  ran  into  the  obstruction  and  M'as  thrown  from  his 
carriage  and  injured.  It  was  held  that  the  defendant  was  not 
bound  to  anticipate  the  mischievous  or  wrongful  acts  on  the  part 
of  others,  and  hence  was  not  bound  to  guard  against  them.' 

f.  In  Admiralty  Juj^is diction. 

But  though  the  negligence  of  the  plaintiff  has  been  such  as  to 
have  contributed,  to  some  extent,  as  a  proximate  cause  of  the  in- 
jury, and  would  defeat  the  action  at  common  law,  yet  if  the  case 
is  one  of  admiralty  jurisdiction,  it  will  not  wholly  bar  a  partial 
recovery,  provided  the  fault,  though  evident,  is  neither  willful,  nor 
gross,  nor  inexcusable,  and  where  there  are  circumstances  present- 
ing a  strong  case  for  relief.  This  rule  of  admiralty  is  applicable 
to  all  cases  of  marine  tort,  founded  upon  negligence  and  prosecuted 
in  admiralty,  as  in  harmony  with  the  rule  for  the  division  of  dam- 
ages in  cases  of  .collision.  The  mere  fact  of  the  negligence  of  the 
libelant  as  partly  occasioning  the  injuries  to  him,  when  they  have 
occurred  partly  through  the  negligence  of  the  officers  of  the  ves- 
sel within  admiralty  jurisdiction,  does  not  bar  him  entireh^  from 
a  recovery.  But  whether  the  recovery  should  be  for  exactly  one 
half  of  the  damages  sustained,  or  may,  in  the  discretion  of  the 
court,  be  for  a  greater  or  less  proportion  of  such  damages,  is  still, 
perhaps,  to  some  extent  an  open  question.  A  longshoreman,  em- 
ployed to  load  coal  on  board  a  steamship,  and  injured  while  so 
employed  by  falling  from  the  steamer's  bridge  to  her  deck,  partly 
through  his  own  negligence  and  partly  through  the  negligence  of 
the  steamer's  officers,  is  entitled,  in  a  suit  in  admiralty  against  the 
vessel  for  damages  for  such  injury,  to  a  decree  for  some  portion  of 
the  damages." 

'See  also  Doherty  v.  WaWiam,  4  Gray,  596;  McGinity  v.  New  York,  5  Duer, 

674. 
^The  Max  Morris  v.  Curry,  137  U.  S.  1,  34  L.  ed.  586.     See  The  Marianna 

Flora,  24  U.  S.  11  Wheat.  1,  54,  6  L.  ed.  405,  417;  The  Palmyra,  25  U. 

S.  12  Wheat.  1.  17,  6  L.  ed.  531,  536. 


Chap.  XYL]    CONTKIBUTORY  NEGLIGENCE  IN  ADMIRALTY.  309 

The  rule  recognizing  in  admiralty  an  equal  division  of  the  loss 
has  been  applied  in  numerous  cases.'  Some  of  the  cases  show 
that  this  rule  has  been  extended  to  the  division  of  damages  in 
claims  other  than  those  for  damages  to  the  vessels  M'hich  were  in 
fault  in  a  collision; '  also  in  cases  where  the  vessel  towed  was  held 
to  be  in  fault  for  not  being  in  proper  condition; '  and  where  a 
boat  was  injured  by  striking  the  bottom  of  a  slip  in  unloading  at 
the  respondent's  elevator,  the  boat  herself  being  also  in  fault;* 
and  where  the  vessel  towed  was  old  and  unseaworthy.* 

In  Snow  V.  Carruth,  1  Sprague,  324,  in  the  United  States  Dis- 
trict Court  for  the  District  of  Massachusetts,  damage  to  goods  car- 
ried by  a  vessel  as  freight  was  attributable  partly  to  the  fault  of 
the  carrier  and  partly  to  the  fault  of  the  shipper,  and,  it  being 
impossible  to  ascertain  for  what  proportion  each  was  responsible, 
the  loss  was  divided  equally  between  them;  for  the  rule  is,  "a 
rustic  sort  of  determination  and  such  as  arbiters  and  amicable 
compromisers  of  disputes  commonly  follow,  where  they  cannot 
discover  the  motives  of  the  parties,  or  when  they  see  faults  on 
both  sides." " 

Prior  to  the  recent  ruling  in  The  Max  Morris  v.  Curry ^  137 

^Rogers  v.  TU  St.  Charles,  GO  U.  S.  19  How.  108,  15  L.  ed.  563;  Chamher- 
lain  V.  Ward,  62  U.  S.  21  How.  548,  16  L.  ed.  211;  The  Washimton,  76  U 
S.  9  Wall.  513,  19  L.  ed.  787;  The  Sapphire,   78  U.  S.  11  WaH.  164    20 
L.  ed.  127;  The  Ariadne,  80  U.  S.  13  Wall.  475,  20  L.  ed.  542;  The  Con- 
tinental, 81  U.  S.  14  Wall.  345,  20  L.  ed.  801;  Atlee  v.  Northwestern  U. 
Packet  Co.  88  U.  S.  21  Wall.  389,  22  L.  ed.  619;  The  Teutonia  90  U    S 
23  Wall.  77,  23  L.  ed.  44;  The  Sunnyside,  91  U.  S.  208,  23  L.  ed    302- 
The  America.  92  U.  S.  432,  23  L.  ed.  724;  The  Alabama,  92  U.  S.  695  23 
L.  ed.  763;  The  Atlas,  93  U.  S.  302,  23  L.  ed.  863;  The  Juniata,  93  u'  S 
337,  23  L.  ed.  930;  Tlie  Stephen  Morgan,  94  U.  S.  599,  24  L.  ed.  266;  The 
Virginia  Ehrman,  97  U.  S.  309,  24  L.  ed.  890;  The  City  of  Hartford  97 
U.  S.  323,  24  L.  ed.  930;  The  Civilta,  193  U.  S.  699.  26  L.  ed.  599;  The 
Connecticut,  103  U.  S.  710,  26  L.  ed.  467;  The  North  Star,  106  U  S   17 
27  L.  ed.  91;  The  Sterling,  106  U.  S.  647,  27  L.  ed.  98;  The  Manitoba   122 
U.  S.  97,  30  L.  ed.  1095. 

^The  Juniata,  93  U.  S.  337,  23  L.  ed.  930;  The  WaMngton,  76  U.  S  9  Wall 
513,  19  L.  ed.  787;  The  Alabama,  92  U.  S.  695,  23  L.  ed.  763.  See  also] 
in  the  United  States  district  and  circuit  courts.  Mason  v.  The  William 
Murtangh,  3  Fed.  Rep.  404;  The  William  Murtagh,  17  Fed.  Rep.  260; 
Williams  v.  The  William  Cox,  3  Fed.  Rep.  645,  alfirmed  by  the  circuit 
court;  The  William  Cox,  9  Fed.  Rep.  672;  Connolly  v.  Ross,  11  Fed  Rep 
342;  The  Boi'dentown,  16  Fed.  Rep.  270. 

^Philadelphia  &  R.  R.  Co.  v.  New  England  Transp.  Co.  24  Fed.  Rep.  505. 

^Christian  v.  Van  Tassel,  12  Fed.  Rep.  884. 

^TJie  Syracuse,  18  Fed.  Rep.  828;  The  Reba,  22  Fed.  Rep.  546. 

•  Cleirac,  Us  et  Coutumes  de  la  Mer,  p.  68. 
24 


370  nirosED  duties,  personal.  [Part  II, 

U.  S.  1,  34  L.  ed.  586,  decided  Nov.  17,  1890,  the  application  of 
the  admiralty  rule  of  a  division  of  loss  had  been  sometimes  denied 
in  cases  of  personal  injury  to  which  the  libelant  contributed.*^ 
The  rule  was  applied  to  this  class  of  injuries  in  other  courts." 

Section   38. — Kavigohle   Waters  ivithin  the  Juris- 
diction of  Admiralty. 

The  "navigable  waters  of  the  United  States"  are  such  as  are 
navigable  in  fact,  and  which,  by  themselves  or  their  connection 
with  other  waters,  form  a  continuous  channel  for  commerce  with 
foreign  countries  or  among  the  States.' 

In  Ex  parte  Boyer,  109  U.  S.  629,  27  L.  ed.  1056,  the  waterway 
upon  which  the  collision  occurred  was  actually  the  property  of  the 
State  of  Illinois,  and  was  wholly  artificial,  and  was  wholly  within 
its  territorial  boundaries.  The  court  says,  through  Mr.  Justice 
Blatchford:  "  Within  the  principles  laid  down  by  this  court  in 
the  cases  of  The  Daniel  Ball,  77  U.  S.  10  Wall.  557,  19  L.  ed. 
999,  and  The  MonteUo,  87  U.  S.  20  Wall.  430,  22  L.  ed.  391,  which 
extended  the  salutary  views  of  admiralty  jurisdiction  applied  in 
The  Genesee  Chiefs.  Fitzhugh,  53  U.  S.  12  How.  443,  13  L.  ed. 
1058 ;  The  Bine  v.  Trevor,  74  U.  S.  4  Wall.  555,  18  L.  ed.  451, 
and  The  Eagle,  75  U.  S.  8  Wall.  15,  19  L.  ed.  365,  we  have  no 
doubt  of  the  jurisdiction  of  the  district  court  in  this  case."  "  Nav- 
igable water,  situated  as  this  canal  is,  used  for  the  purposes  for 
which  it  is  used,  a  highway  for  commerce  between  ports  and  places 
in  different  States,  carried  on  by  vessels  such  as  those  in  question 
here,  is  public  water  of  the  United  States." 

The  Constitution  confers  not  only  admiralty,  but  all  "  maritime," 
jurisdiction.*     "  Maritime  "  was  added  to  guard  against  a  narrow 

^Peterson  v.  The  CMndos,  4  Fed.  Rep.  649;  Holmes  v.  Oregon  &  G.  R.  Co.  5 

Fed.  Rep.  523,  538;  The  ManMsset,  19  Fed.  Rep.  430. 
^The  Explorer,  20  Fed.  Rep.  135;    The  Wanderer,  Id.   140;    The  Truro,  31 

Fed.  Rep.  158;  The  Eddy  stone,  38  Fed.  Rep.  925. 
miller  V  New  York  City,  109  U.  S.  385,  395,  27  L.  ed.  971,  975;  The  Mon- 

tello    78  U    S    11  Wall.  411,  20  L.  ed.  191;  Fulmer  v.  Williams,  123  Pa. 

191  'l  L  R  A.  603;  The  Daniel  Ball,  77  U.  S.  10  Wall.  563,  19  L.  ed. 

lOo';  Escanaba  &  L.  31.  Transp.  Co.  v.  Chicago,  107  U.  S.  682,  27  L.  ed.  444. 
*I)e  Lovio  V.  Boit,  2  Gall.  398.     And  see  Davis  v.  The  Seneca,  Gilp.  28;  The 

Huntress,  3  Ware,  83;  Kynoch  v.  The  S.  C.  Ives,  Newb.  205;  Desty,  Fed. 

Const.  221. 


Chap.  XYL]       JURISDICTION  of   IsAVIGABLE  WATEItS.  371 

interpretation  of  the  word  "  admiralty,"  '  The  maritime  law  is  a 
part  of  the  common  law,"  and  the  term  belongs  to  the  law  of  na- 
tions as  w^ell  as  domestic  and  municipal  law/  The  grant  was  not 
intended  to  be  limited  to  cases  of  admiralty  jurisdiction  in  England 
when  the  Constitution  was  adopted/  The  jurisdiction  is  entirely 
distinct  from  the  power  of  Congress  to  regulate  commerce.' 

The  admiralty  and  maritime  jurisdiction  of  the  United  States 
granted  by  the  Constitution  extends  to  all  navigable  lakes  and  riv- 
ers, where  commerce  is  carried  on  between  States,  or  with  a  for- 
eign country.*  The  grant  of  admiralty  jurisdiction  does  not 
extend  to  a  cession  of  the  waters  ceded  to  the  several  States,  nor 
to  the  general  jurisdiction  over  the  same.'  The  general  juris- 
diction over  the  places  subject  to  this  grant  of  admiralty  jurisdic- 
tion adheres  to  the  territory  as  a  portion  of  severeignty  not  vet 
given  away,  and  the  residuary  powers  of  legislation  still  remain  in 
the  State.*  The  shores  of  navigable  waters  and  the  soil  under 
them  between  high  and  low  water  marks  were  not  granted  by  the 
Constitution  to  the  United  States,  but  were  reserved  to  the  States 
respectively ;  and  the  new  States  have  the  same  rights  and  juris- 
diction on  this  subject  as  the  original  States.* 

Upon  admission  of  a  State  into  the  Union   it  at  once  becomes 

^Fretz  V.  Bull,  53  U.  S.  12  How.  466,  13  L.  ed.  1068;  The  Eine  v.  Trevor  71 
U.  S.  4  Wall.  555,  561,  18  L.  ed.  451,  453;  The  Moses  Taylor,  71  U  S  4 
Wall.  411,  18  L.  ed.  397. 

'^Thompson  v.  I'he  Catharina,  1  Pet.  Adm.  104. 

^The  Huntress,  2  Ware,  82. 

*I^ew  Jersey  Steam  Nav.  Co.  v.  MerchanU  Bank,  47  U.  S.  6  How.  344,  12  L. 
ed.  465;   Waring  v.  Clarke,  46  U.  S.  5  How.  441,  12  L.  ed.  226;  I)e  Lotto 
V.  Boit,  2  Gall.  398;  Davis  v.  The  Seneca,  Gilp.  10,  34;   The  Gold  Hunter 
Blatchf.  &  H.  300;  Steele  v.  Thatcher,  1  Ware,  91;  The  Huntress,  2  Warel 
82;  Kynoch  v.  The  8.  C.  Ives,  Newb.  205;  The  Volunteer,  1  Sumn.  551. 

^The  Oenesee  Chief  v.  Fitzhugh,  53  U.  S.  12  How.  448,  18  L.  ed.  1058-  The 
Belfast,  74  U.  S.  7  Wall.  624,  19  L.  ed.  266;  The  Sarah  Jane,  1  Low.  203. 

*T}ie  Genesee  Chief  v.  Fitzhugh,  53  U.  S.  12  How.  443,  13  L.  ed.  1058;  Tlie 
Hine  v.  Trevor,  71  U.  S.  4  Wall.  561,  18  L.  ed.  453. 

■>  United  States  v.  Bevans,  16  U.  S.  3  Wheat.  336, 4  L.  ed.  404;  Smith  v.  Mary- 
land, 59  U.  S.  18  How.  71,  15  L.  ed.  260;  The  Wave  v.  Hyer,  2  Paine,  131, 
Blatchf.  &  H.  235;  The  Genesee  Chief  v.  Fitzhugh,  53  U.  S,  12  How  443. 
13  L.  ed.  1058. 

'United  States  v.  Bevans,  16  U.  S.  3  Wheat.  336,  4  L.  ed.  404. 

^Ooodtitle  V.  Kibbe,  50  U.  S.  9  How.  471,  13  L.  ed.220;  Pollard  v.  Hagan,  44 
U.  S.  3  How.  212,  11  L.  ed.  565;   Mobile  v.  Eslava,  41  U.  S.  16  Pet.  234 
10  L.  ed.  948;  Mobile  v,  Hallett,  41  U.  S.  16  Pet.  261,  10  L.  ed.  958;  Mobile 
V.  Emanuel,  42  U.  S.  1  How.  95,  11  L.  ed.  60;  Doe  v.  Bcebe,  54  U.  S.  13 
How.  25,  14  L.  ed.  35. 


372  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

entitled  to  and  is  possessed  of  all  the  rights  of  dominion  and  sov- 
ereignty which  belonged  to  the  original  States,  and  can  there- 
fore afterwards  exercise  the  same  powers  over  rivers  within  her 
limits  as  Delaware  exercised  over  Blackbird  Creek,  and  Pennsyl- 
vania over  Schylkill  River.'  A  concurrent  jurisdiction  of  neces- 
sity exists  over  w^aters  of  a  navigable  river  forming  the  boundary 
between  two  States.'  The  Savannah  River  is  a  public  navi- 
gable stream,  and  the  voyages  of  a  vessel  and  her  cargo  between 
landings  in  Georgia  and  South  Carolina  are  interstate  in  character, 
and  the  jurisdiction  of  Congress  is  undoubted.^  So  the  Ohio  is 
one  of  the  navigable  rivers  of  the  United  States." 

In  this  country,  as  a  general  thing,  all  waters  are  deemed  navi- 
gable which  are  really  so;  *  and  especially  is  it  true  with  regard 
to  the  Mississippi  and  its  principal  branches.* 

The  Ordinance  of  1787  provided  that  the  navigable  waters 
leading  into  the  Mississippi  and  St.  Lawrence,  and  the  carrying 
places  between  them,  shall  be  common  highways  for  canoes  or 
batteaux  in  the  commerce  between  the  northwestern  wilderness 
and  the  settled  portions  of  the  United  States  and  foreign  coun- 
tries, and  as  to  such  rivers  not  then  in  use  as  would  b}'  law  be  de- 
fined as  navigable  waters.' 

If  a  river  is  navigable  only  between  different  places  within  the 
State,  then  it  is  not  a  navigable  water  of  the  United  States,  but 
only  a  navigable  water  of  the  State.* 

^Pollard  V.  Hagan,  44  U.  S.  3  How.  212,  11  L.  ed.  565;  PermoU  v.  Munici- 

pallty  No.  1  of  New  Orleans,  44  U.  S.  3  How.  589,  11  L.  ed.  739;  Strader 

V    Qrnham,  51  U.  S.  10  How.  82,  13  L.  ed.  337;  Huse  v.  Gloier,  119  U. 

S.  543,  30  L.  ed.  487;  Doe  v.  Beebe,  54  U.  S.  13  How.  25,  14  L.  ed.  35. 
'^Aiteheson  v.  The  Endless  Chain  Dredge,  40  Fed.  Rep.  253. 
^Lawion  v.  Comer,  7  L.  R.  A.  55,  40  Fed.  Rep.  480. 
^Neicport  &  G.  Bridge  Co.   v.  United  States,  105  U.  S.  470,  475,  26  L.  ed. 

1143,  1145;  Cincinnati,  P.  B.  8.  &  P.  Packet  Co.   v.  Catlettsburg ,  105  U. 

S.  559,  26  L.  ed.  1169. 
^Bucki  V.  Cone,  25  Fla.  1. 
^McManus  v.  Carmichael,  3  Iowa,  1;  Haight  v.  Keokuk,  4:  lo-w&,  199;  Tomlin 

V.  Dubuque,  B.  &  M.  R.  Co.  32  Iowa.  106;  Barney  v.  Keokuk,  94  U.  S. 

336    24  L.  ed.  227;  Escanaba  &  L.  M.  Tramp.  Co.  v.  Chicago,  107  U.  S. 

678,  27  L.  ed.  442;  The  Montello,  87  U.  S.  20  Wall.  430,  22  L.  ed.  391. 
''Burroughs  v.  Whitwam,  59  Mich.  279. 
^Miller  v.  New  York  City,  109  U.  S.  385,  27  L.  ed.  971 ;  The  Montello,  78  U. 

S.  11  Wall.  411,  20  L.  ed.  191;  Com.  v.  King,  150  Mass.  221,  5  L.  R.  A. 

536. 


Chap.   XVI.]       NAVIGABLE    "WATERS. TIDAL    STKEAM8.  373 

Section  ^9.—j\^avigahl6  Waters.— Tidal  Streams. 

What  are  navigable  waters,  as  exchulino:  private  ownersliip  and 
making  tliem  public  highways,  is  also  important  as  determining 
the  duties  of  riparian  owners  and  of  the  public  users.  The  term 
"  navigable  waters,"  as  commonly  used  in  the  law,  has  three  dis. 
tinct  meanings :  (1)  as  synonymous  with  "tide  waters,"  being  wa,- 
ters,  whether  salt  or  fresh,  Avhere  the  ebb  and  flow  of  the  tide  from 
the  sea  is  felt ;  (2)  as  limited  to  tide  waters  which  are  capable  of 
being  navigated  for  some  useful  purpose,  or  (3)  as  including  all 
waters,  whetlicr  within  or  beyond  the  flow  of  the  tide,  which  can 
be  used  for  navigation.  The  last  class  is  not  recognized  in  Mas- 
sachusetts, but  is  generally  accepted  by  the  state  courts,  as  also  by 
the  Supreme  Court  of  the  United  States.' 

Whether  a  stream  was  navigable  or  non-navigable,  in  England, 
was  generally  determined,  in  the  old  cases,  by  whether  the  tide 
ebbed  or  flowed  in  the  stream ;  and  doubtless  the  tide  does  ebb 
and  flow  very  generally  in  the  navigable  streams  of  Great  Britain; 
but  in  the  United  States,  in  most  of  the  navigable  streams,  the 
tides  do  not  ebb  and  flow.  The  common  law  is  in  constant 
healthful  growth  with  individual  and  national  life.  A  remark- 
able instance  of  the  development  of  the  law  is  seen  in  the  doctrine 
almost  unanimously  adopted  by  the  courts  in  this  counti-y,  that  a 
river  may  be  considered  navigable  although  not  affected  by  a  flow 
of  the  tides  from  the  sea.  Tlie  common  law  was  otherwise. 
Lord  Hale,  the  great  publicist,  knew  no  such  doctrine.  Leo-isla- 
tion  did  not  create  it.  The  courts  felt  obliged  to  adopt  the  inter- 
pretation, as  a  new  application  of  an  old  rule,  from  an  irresistible 
puljlic  necessity.'^  The  great  mass  of  the  commerce  of  the 
United  States  is  transported  on  waters  in  which  the  tides  do  not 
ebb  and  flow,  and  even  when  it  is  moved  upon  streams  on  which 
the  tide  does  ebb  and  flow,  it  is  only  for  comparatively  a  short 
space,  while  for  nearly  the  whole  distance  it  has  been  moved 
from  above  the  tide-water  section  of  the  country.  Indeed,  this 
is  the  case  in  very  many  States  of  the  Union  that  carry  on  a 
large  commerce  in  which  there  is  no  tide  water.     But  in  none  of 

^Com.  V.  Vincent,  108  Mass.  441,  447. 

^Woodman  v.  Pitman,  79  Me.  45(3,  4  New  Eng.  Rep.  699;  Lexington  &  0  R 
Co.  V.  Aiyphfjate,  8  Dana,  289,  33  Am.  Dec.  497,  513. 


374  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

these  States  has  it  been  held  that  tliese  are  not  navigable  streams 
simply  because  there  was  no  ebb  or  flow  of  the  tide.  In  the 
United  States  some  of  the  decisions  recognize  these  somewhat  dif- 
ferently defined  classes  of  navigable  streams.  Thus  tidal  streams 
are  held  prima  facie  navigable  in  law,'  but  this  test  has  no 
apjjlication  to  the  waters  of  North  Carolina,  where  the  test  is 
whether  or  not  the  water  is  navigable  for  sea  vessels.*  And  in 
none  of  the  courts  is  every  small  cr6ek  in  which  a  fishing  skiff  or 
gunning  canoe  can  be  made  to  float  at  high  tide  deemed  subject 
to  public  use;  but  in  order  to  have  a  public  character,  it  must  be 
navigable  for  some  purpose  useful  to  business  or  pleasure.^  So 
in  many  small  creeks  into  which  the  sea  water  flows,  but  which  are 
incapable  of  being  navigated,  private  property  may  be  maintained.'' 
This  is  true  although  they  are  navigable  at  exceptional  and  extraor- 
dinary tides.^  For  the  mere  presence  of  the  tide  does  not  in 
itself  alone  prevent  a  creek  being  private  estate.'  Therefore  the 
ebb  and  flow  of  the  tide  as  a  matter  of  fact  is  not  inconsistent  with 
a  right  of  private  pi-oj)erty  in  a  creek,  although  prima  facie  evi- 
dence against  such  right.'  And  it  may  be  stated  as  the  settled 
law  in  this  country  that  public  right  is  limited  to  those  streams 
and  inlets  which  are  capable  of  public  use.* 

Waston  V.  Mace,  33  W.  Va.  14,  5  L.  R.  A.  393;  Sullivan  v.  Spotmood,  82 

Ala.  163;  Bucki  v.  Cone,  25  Fla.  1;  Hodges  v.  Williams,  95  N.  C.  331. 
*  Hodges  v.  Williams,  95  N.  C.  331. 
*Com.  V.  Breed,  4  Pick.  460;   Murdoch  v.  Stickney,   8  Cush.    113.  115;    West 

Roxbury  v.  Stoddard,  7  Allen,  158,  171  ;  United  States  v.  The  Montello,  87 

U.  S.  20  Wall.  442,  543,  22  L.  ed.  394;  Getty  v.  Hudson  River  R.   Co.  21 

Barb.  617;  Gould,  Waters,  199. 
*Com.  V.  Charlesiown,  1  Pick.  186.     See  Miles  v.  Rose,  5  Taunt.  706;  Vooght 

V.  Winch,  2  Barn.  &  Aid.  662. 
^Rowe  V.  Oranite  Bridge  Corp.  21  Pick.  344;  Atty-Oen.  v.  Woods,  108  Mass. 

436. 
^Lynn  v.  Turner,  Cowp.  86,  Lofft,  556. 
"^Miles  V.  Rose,  5  Taunt.  706. 
^The  Montello,  87  U.  S.  20  W^all.  442,  22  L.  ed.  394;  UniUd  States  v.  NewBed- 

fm-d  Bridge,  1  Woodb.  &  M.  487;  Wethersfield  v.  Humphrey,  20  Conn.  218; 

Groton  v."  Hurlburt,  22  Conn.    178;  Burrows  v.    Gallup,  32   Conn.    501; 

Brown  v.  Preston,  38  Conn.  219;  Charlestown  v.  Middlesex  County,  3  Met. 

202;  Glover  v.  Powell,  10  N.  J.  Eq.  211;  Flanagan  v.  Philadelphia,  42  Pa. 

219. 


\ 


CHAPTER  XYII. 

TITLE  TO  AND  LIABILITY  FOR  OBSTRUCTIONS  IN  WATERS. 

Sec.  40.  Non-Tidal  Navigalle  Rivers. 

Sec.  41.   Title  of  the  National  or   State  Government   in    the    Sea 

Shore  and  in  the  Banks  and  Beds  of  Tidal  Streams.  —  Title  of 

Riparian  Owner. 

Section  ^O.—Mon- Tidal  Jfavigahle  Rivers. 

With  reference  to  the  second  of  these  classes  of  navii>:able 
streams,  it  will  be  observed  from  its  definition  that  whether  fresli- 
water  streams  be  or  be  not  navigable  is  a  question  of  fact,  and,  as 
such,  those  who  claim  such  non-tidal  streams  to  be  navigable  have 
oil  them  the  burden  of  proving  that  such  streams  are  in  fact  navi- 
gable for  boats  or  lighters,  and  susceptible  of  valuable  use  for 
commercial  purposes  in  the  natural  state,  unaided  by  artificial 
means  or  devices.'  A  state  court  will  take  judicial  notice  of  the 
fact  that  the  whole  of  a  river  within  a  State  is  above  tlie  ebb  and 
flow  of  tides,  and  of  the  navigability  of  certain  waters.^ 

A  text  writer  has  stated  the  rule  vaguely,  thus :  "As  the 
right  of  navigation  extends  to  all  waters  which  have  a  natural  ca- 
pacity for  such  use,  there  is  a  general  presumption  of  an  ease- 
ment." ^     This  is  true  only  as  to  waters  of  such  natural  capacity. 

In  regard  to  non-tidal  waters  it  may  be  said  that  a  fi-esh-water 
stream,  above  tide-water,  is  navigable  and  a  public  highway  only 
when  it  is  susceptible  of  being  used,  in  ordinary  condition,  for  a 
highway  of  commerce,  over  which  there  may  be  trade,  travel, 
transportation  or  valuable  floatage.* 

In  this  country  all  rivers  are  regarded  as  navigable  as  far  up  as 
they  may  be  conveniently  used  at  all  seasons  of  the  year  for  the 
purposes  of  commerce,  and  also  when  declared  by  statute  to  be 

^Morrison  v.  Coleman,  87  Ala.  655,  5  L.  R.  A.  384. 

^Olive  V.  State,  86  Ala.  88,  4  L.  R.  A.  33;  Mossman  v.  Forrest,  27  Ind.  233; 
Neaderliouser  v.  Slate,  28  Ind.  257;  Ross  v.  Faust,  54  Ind.  471;  Bittle  v.' 
Stuart,  84  Ark.  224;  T/iojiipson  v.  Androscoggin  B.  Imp.  Co.  54  N.  H. 
545;   Wfiitney  v.  Gauche,  11  La.  Ann.  442. 

*Phear,  Rights  of  Water,  15,  7iote. 

-^Morrison  v.  Coleman,  87  Ala.  655,  5  L,  R.  A.  384;  Martin  v  Bliss  5 
Blackf.  35. 


376  IMPOSED  DUTIES,  PERSONAL.  [Part  11. 

navigable ;  but,  further  than  this,  what  constitutes  a  navigable 
stream,  so  far  as  to  make  it  a  public  highway,  is  a  question  of 
fact  to  be  determined  by  the  natural  conditions  in  each  case/  But 
the  stream,  in  order  to  belong  to  this  second  class  of  navigable 
streams,  must  be  thus  capable  of  being  navigated,  not  necessarily 
at  all  times,  but  for  such  length  of  time  during  the  year  as  will 
make  such  stream  valuable  to  the  public  as  a  public  highway.  But 
the  fact  that  the  stream  cannot  be  so  used  at  certain  seasons  of  the 
year  will  not  destroy  the  public  right  of  navigation  or  make  such 
stream  non-navigable.^ 

To  be  a  navigable  river  it  must  be  generally  navigable  to 
some  purpose  useful  to  trade  or  agriculture.'  There  must  be 
some  commerce  and  navigation  upon  it  which  is  essentially  valua- 
ble.* The  capability  of  use  by  the  public  for  the  purposes  of  com- 
merce is  the  true  criterion  of  the  navigability  of  a  river,  no  matter 
in  what  mode  the  commerce  may  be  conducted  and  notwithstand- 
ing navigation  may  be  encompassed  with  difficulties  through  nat- 
ural barriers.^  When  a  river  is  capable  of  navigation  in  different 
parts  of  its  course,  but  by  reason  of  rocks,  sand-bars  and  other 
obstructions  does  not  admit  of  continuous  navigation,  the  public 
may  pass  and  repass  in  those  parts  of  the  river  which  are  naviga- 
ble."    If  the  navigation  of  a  river  naturally   navigable   be   im- 

^Bucki  V.  Cone,  25  Fla.  1. 

^Gaston  v.  Mace,  33  W.  Va.  14,  5  L.  R.  A.  393.  See  McManus  v.  Cnr- 
michael,  3  Iowa,  1;  Rhodes  v.  Otis,  33  Ala.  578;  Morgan  v.  King,  35  N.Y. 
459;  Berry  v.  Carle,  3  Me.  269;  Wadsicortli  v.  Smith,  11  Me.  278;  People 
V.  Tibhetts,  19  N.  Y.  523;  Reynolds  v.  McArthur,  27  U.  S.  2  Pet.  417,  7L. 
ed.  470;  Wood,  Nuis.  §  587. 

^Roire  V.  Granite  Bridge  Corp.  21  Pick.  344. 

*  Woodman  v.  Pitman,  79  Me.  456,  4  New  Eng.  Rep.  702. 

^Doty  V.  Strong,  1  Pin.  (Wis.)  316;  Moore  v.  Sanborne,  2  Mich.  519;  Brownv. 
Chadbourne,  31  Me.  9;  People  v.  Cannl  Appraisers,  33  N.  Y.  461;  Morgan 
V.  King,  35  N.  Y.  459;  Flanagan  v.  Philadelphia,  42  Pa.  219;  Monongahe- 
la  Bridge  Co.  v.  Kirk,  46  Pa.  112;  Cox  v.  State,  3  Blackf.  193;  Hogg  v. 
Zanesville  Canal  &  Mfg.  Co.  5  Oliio,  410;  Hickok  v.  Hine,  23  Oliio  St.  527; 
Jolly  V.  Terre  Haute  DraWrBridge  Co.  6  McLean,  237;  Illinois  River  Packet 
Co.  V.  Peoria  Bridge  Asso.  38  111.  407;  UarringtoJi  v.  Edwards,  17  Wis.  586. 

^The  Daniel  Ball,  77  U.  S.  10  Wall.  557,  19  L.  ed.  999;  Spooner  v.  McCon- 
nell,  1  McLean,  337,  350;  Jolly  v.  I'erre  Haute  Draw-Bridge  Co.  6  Mc- 
Lean, 237;  People  v.  Canal  Appraisers,  33  N.  Y.  461;  Morgan  v.  King,  35 
N.  Y.  459;  Flanagan  v.  PMladelphia,  42  Pa.  219;  Monongahela  Bridge  Co. 
V.  Kirk,  46  Pa.  112;  Coxv.  Slate,  3  Blackf.  193;  Hogg  v.  Zanesville  Canal 
&  Mfg.  Co.  5  Ohio,  410;  Illinois  River  Packet  Co.  v.  Peoria  Bridge  Asso.  38 
111.  467;  Harrington  v.  Edwards,  17  Wis.  586;  Brown  v.  Chadbourne,  31 
Me.  9,  23,  25;  Gould,  Waters,  199.  See  Tlie  City  of  Salem,  37  Fed. 
Rep.  846,  2  L.  R.  A.  380. 


Cliap.  XVII.]  TITLE    IN    SEA    SHORE,  ETC.  377 

proved  by  the  riparian  owner,  the  public  have  a  riglit  to  use  it  in 
its  improved  condition  for  the  purposes  to  which  it  is  suited  as 
improved.'  But  if  the  stream  was  originally  non-navigable,  the 
public  right  to  its  use  in  its  improved  condition  does  not  attach.' 
The  public  has  a  right  of  passage  over  all  fresh-water  streams 
which  are  by  nature  susceptible  of  general  use ;  and  those  rivers 
are  public  and  navigable  in  law  which  are  navigable  in  fact.'  The 
criterion  of  navigability  is  the  use  to  which  the  stream  may  be  put.* 

Section  4:1.— Title  of  the  JSfatiojial  or  State  Govern- 
ment  in   the   Sea  Shore   and   in   the  Banks 
and  Beds  of  Tidal  Streams.— Title  of  Riparian 
Owner. 

"With  reference  to  the  first  of  these  classes,  tidal  streams,  wher- 
ever the  common-law  prevails,  are  held  to  be  navigable.  Ey  the 
old  English  cases  it  is  decided  that  all  tidal  waters  are  navigable  to 
the  extent  of  the  flow  and  reflow  of  the  tide ;  and  that  the  abso- 
lute property  interest  in  the  same,  in  the  course,  and  the  right  of 

» ^Wadmorth  v.  Smith,  11  Me.  278;  Toot/taker  v.  Winslow,  61  Me.  123;  IIol- 
den  V.  Robinson  Mfg.  Go.  65  Me.  215;  Cates  v.  Wadlington,  1  McCord  L 
580;  Volk  v.  Eldred,  23  Wis.  410. 

•Hale,  De  Jure  Maris,  chaps.  2,  3;  Williams  v.  Wihxc,  8  Ad.  &  El  314 
333;  Bo.rr>ey  v.  Eeokuk,  94  U.  S,  342,  24  L.  ed.  224;  Pound  v.  Ttirck  95 
U.  S.  4.59,  24  L.  ed.  525;  The  Daniel  Ball,  77  U.  S.  10  Wall.  557  19  L  'ed 
999;  The  Montello,  78  U.  S.  11  AVall.  411.  20  L.  ed.  191;  Carter  v.  Thurs- 
ton, 58  N.  H.  108;  Broxon  v.  Chadbourne,  31  ^le.  9;  Moor  v.  Veazie  32 
Me.  343;  Springs.  Russell,  7  Me.  273,  290;  Wadsworth  v.  Smith,  11  Me. 
278;  Thompson  v.  Androscoggin  R.  Imp.  Co.  54  N.  H.  545,  58  N.  H.  108; 
Adams  v.  Pease,  2  Conn.  481;  Ingraham  v.  Wilkinson,  4  Pick.  268;  Corn. 
V.  Chapin,  5  Pick.  199;  Avery  v.  Fox.  1  Abb.  U.  S.  246,  Palmer  v.  MuUi 
gan,  3  Gaines,  307;  People  v.  Piatt,  17  Jolins.  195,  211;  Hooker  v.  Cum- 
mings,  20  Johns.  90;  Canal  Comrs.  v.  People,  5  Wend.  423;  Morgan  v 
King,  35  N.  Y.  454,  30  Barb.  9,  18  Barb.  277;  Munson  v.  Uungerford  6 
Barb.  265;  Rowe  v.  Titus,  1  Allen  (N.  B.)  326;  Esson  v.  McMaster,  1 
Kerr  (N.  B.)  501;  Boissonnault  v.  Oliv,  Stuart  (Low.  Can.)  565;  Moore  'v. 
Sanborne,  2  Mich.  519;  Lorman  v.  Benson,  8  Mich.  18;  Rhodes  v.  Otis  Z'i 
Ala.  578,  596;  Cox  v.  State,  3  Blackf.  193;  Weise  v.  Smith,  3  Or.  445,  448; 
Healy  v.  Chicago  &  J.  R.  Co.  2  111.  App.  435;  Pe>^le  v.  St.  Louis,  10  111.' 
351;  Godfrey  v.  Alton,  12  111.  29;  Memphix  v.  Overton,  3  Yerg.  389;  Elder 
V.  Burrus,  6  Humph.  358;  Stuart  v.  Clark,  2  Swan,  15;  Siqler  v.  State,  7 
Baxt.  493;  Tales  v.  Judd,  18  Wis.  118;  Hickok  v.  lline,  23  Ohio  St  523- 
Selman  v.  Wolfe,  27  Tex.  68;  Gould,  Waters,  p.  115. 

^The  Montello,  87  U.  S.  20  Wall.  430,  22  L.  ed.  391;  Rhodes  v.  Otis,  33  Ala. 
578;  Wadmcorth  v.  S7nith,  11  Me.  278;  lyeat  v.  Lord,  42  Me.  552;  Moore 
V.  Sanborne,  2  Mich.  519;  Thunder  Bay  River  Booming  Co.  v.  Speedily  31 
Mich.  336;  Davis  v.  Winslow,  51  Me.  264,  81  Am.  Dec.  583. 


378  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

€oil  of  owners  of  such  land  bounded  by  such  tide-water  streams, 
extends  only  to  high- water  mark. 

Title  to  land  under  water,  and  to  the  shore  below  ordinary  high- 
water  mark,  in  navigable  rivers  and  arms  of  the  sea,  was,  by  com- 
mon law,  vested  in  the  Sovereign.'  The  rule  applies  to  lands 
bounded  by  the  sea  or  by  bays.  The  boundarj^  line  is  the  high- 
water  mark  and  the  shore  or  beach  is  the  property  of  tlie  State.* 
In  determining  the  exact  location  of  the  low  or  high  water  mark 
reference  is  had  to  the  ordinary  or  medium  rise  and  fall  of  the 
water.'  Ordinarily,  where  the  tide  ebbs  and  flows,  the  title  to  the 
bed  of  the  stream  is  in  the  State." 

High-water  mark,  or  the  dividing  line  between  the  proprietors 
of  lands  bordering  on  a  navigable  stream  and  the  State,  is  the  point 
be,yond  which  the  presence  and  action  of  water  are  so  common  and 
usual  and  so  long  continued  in  all  ordinary  years  as  to  mark  upon 
the  soil  a  character  distinct  from  that  of  the  banks  in  respect  to 
vegetation,  as  well  as  in  respect  to  the  soil  itself.''  At  common 
law,  the  shore  of  the  sea  is  the  space  between  high  and  low  water 
mark."  The  words  "  beach,"  "  strand,"  "  flats,"  are  often  held 
synonymous  with  shore.''     The  shore  below  ordinary,  but  not  ex- 

^Barney  v.  Keokuk,  94  U.  S.  324,  34  L.  ed.  224;  Smith  r.  Maryland,  59  U 
S.  18  How.  71,  15  L.  ed.  269. 

^ Hodge  v.  Boothby,  48  Me.  71;  Mather  v.  Chapman,  40  Conn.  382;  Dana  v. 
Jackson  Street  Wharf  Co.  Zl  Cal.  120;  Slorer  v.  Fieeynan,  6  Mass.  435; 
Com.  V.  Roxbury,  9  Gray,  492;  Nilesv.  Patch,  13  Gray,  254;  Ledyard\. 
Ten  Exick,  36  Barb.  125;  CorteJyou  v.  Van  Bnindt,  2  Johns.  362;  Goodtitle 
V.  Kibhe,  50  U.  S.  9  How.  471,^13  L.  ed.  220;  Pollard  v.  Hagan,  44  U.  S. 
3  How.  212,  11  L.  ed.  565. 

*Com.  V.  Roxbury,  9  Gray,  451;  Teschemacher  v.  Thompson,  18  Cal.  21;  Mar- 
tina. O'Brien,  34  Miss.  21;  Stover  v.  Jack,  60  Pa.  339;  Tinicum,  Fishing 
Co.  V.  CarUr,  61  Pa.  21;  Wood  v.  .4i^;;aZ,  63  Pa.  221;  Com.  v.  Alger,  7 
Cush.  63. 

*Com  V.  Chapin,  5  Pick.  199;  Keyport  &  M.  P.  Steamboat  Co.  v.  Farmers 
Tramp.  Co.  18  N.  J.  Eq.  13;  Cobb  v.  Davenport,  32  N.  ,J.  L.  369;  People 
V.  Tibbetts.  19  N.  Y.  523;  Smith  v.  Levinus,  8  N.  Y.  472;  Flanagan  v. 
Philadelphia,  42  Pa.  219;  The  Magnolia  v.  Mars?iall,39  Miss.  109. 

*St.  iMuis,  I.  M.  &  S.  R.  Co.  V.  Ramsey  (Ark.  May  24,  1«90)  8  L.  R.  A.  559. 

^Martin  v.  O'Brien,  34  Miss.  21;  Cutts  v.  Hussey,  15  Me.  237;  Galveston  v. 
Menard,  23  Tex.  349 ;  Storer  v.  Freeman,  6  Mass.  439 :  Teschemacher  v. 
Ihompson,  18  Cal.  21;  Qough  v.  Bell,  22  N.  J.  L.  441;  Atty-Oen.  v.  Cham,- 
bers  27  Eng.  L.  &  Eq.  242,  4  DeG.  M.  &  G.  206;  United  States  v. 
Paclieco,  69  U.  S.  2  Wall.  587,  17  L.  ed.  865. 

^East  Hampton  v.  Kirk,  6  Hun,  257;  Cutts  v.  Hussey,  15  Me.  237;  Littlefield 
Y.  Littlefield,  28  Me.  180;  Doane  v.  Willcutt,  5  Gray,  328;  Hodge  v.  Boothby, 
48  Me.  71;  Mies  v.  Patch,  13  Gray,  254;  Dana  v.  Jackson  Street  Wharf 
Co.  31  Cal.  120;  Doe  v.  Beebe,  54  U.  S.  13  How.  25,  14  L.  ed.  85;  Merwin 
V.  Wheeler,  41  Conn.  14. 


I 


Chap.  XVII.]  TITLE    IN    SEA    SHORE,   ETC.  379 

traordinary,  hi<,^h-water  mark,  belongs  to  the  public ;  to  the  Crown 
in  England;  in  this  country  to  the  State.'  Congress  cannot  grant 
lands  below  low-water  mark  on  navigable  water  in  a  State."  The 
banks  and  shores  of  navigable  waters,  whether  sea,  lake  or  river, 
in  any  of  the  States,  belong  cither  to  the  State,  or  to  individuals, 
as  the  case  may  be,  and  not  to  the  United  States.* 

When  the  Kevolution  took  place  the  people  of  each  State  be- 
came themselves  sovereign,  and  in  that  character  held  the  absolute 
right  to  all  their  navigable  waters  and  the  soil  under  them,  for 
their  own  common  use,  subject  only  to  the  rights  since  surrendered 
by  the  Constitution  to  the  general  government.*  The  shores  of 
navigable  waters,  and  the  soils  under  them,  were  not  granted  by 
the  Constitution  to  the  United  States,  but  were  reserved  to  the 
States  respectively.*  The  right  and  title  to  the  lake  shore  of  the 
great  lakes  is  in  the  several  States,  not  in  the  United  States.* 

The  title  to  the  soil  under  tide-water  is  in  the  State ;  and  even 
the  establishment  of  a  harbor  line  does  not  transfer  the  fee  to  the 
riparian  owner,  but  only  operates  as  a  license  to  him  to  fill  out  and 
incorporate  the  flats  with  the  upland.'  Soil  below  high-water 
mark  belongs  to  the  State.  The  State  may  forbid  all  such  acts  as 
would  destroy  or  injure  the  public  right  of  fishery  on  such  soil.* 
The  power  to  regulate  the  fisheries  was  never  surrendered  by  the 
grant  of  admiralty  and  maritime  jurisdiction.'  A  State  can  grant 
to  its  own  citizens  the  exclusive  use  of  lands  covered  by  water,  for 
raising  oysters,  and  may  prohibit,  under  a  penalty,  their  use  for 
such  purpose  by  citizens  of  other  States,'" 

^Brookhaven  v.  Strong,  60  N.  Y.  56;  Martin  v.  Waddell,  41  U.  S.  16  Pet.  367, 
10  L.  ed.  997;  Com.  v.  Oharlestown,  1  Pick.  180;  Cortelyou  v.Van  Brundt, 
2  Johns.  362;  Ang.  Tide  Waters,  20  etseq.;  State  v.  Jersey  City,  25  N.  J. 
L.  525;  Bell  v.  Cough,  23  N.  J.  L.  624;  United  States  v.  Pachecv,  69  U.  S. 
2  Wall.  587,  17  L.  ed.  865. 

'Mobile  V.  Emanuel,  42  U.  S.  1  How.  97,  11  L.  ed.  60;  Doe  v.  Beebe,  54  U. 
S.  13  How.  25,  14  L.  ed.  35. 

37  Ops.  Atty-Gen.  314;  Doe  v.  Beebe,  54  U.  S.  13  How.  25,  14  L.  ed.  35, 

^Martin  v.  Waddell,  41  U.  S.  16  Pet.  367,  10  L.  ed.  997. 

^Pollard  V.  Uagan.  44  U.  S.  3  How.  212,  11  L.  ed.  505. 

«6  Ops.  Atty-Gen.  172;  Doe  v.  Beebe,  54  U.  S.  13  How'.  35,  14  L.  ed.  35. 

''Gerhard  v.  Seekonk  River  Bridge  Comrs.  15  R.  I.  334,  2  New  Eng.  Rep.  619. 

^Smith  V.  Maryland.  59  U.  S.  18  How.  71,  15  L.  ed.  269;  McCready  v.  Vir- 
ginia, 94  U.  S.  391,  24  L.  ed.  248. 

^Smith  V.  Maryland,  59  U.  S.  18  How.  71.  15  L.  ed.  269;  Bennett  v.  Boggs, 
Baldw.  60;  Corfidd  v.  Coryell,  4  Wash.  C.  C.  371. 

^oMcCready  v.  Virginia,  94  U.  S.  391,  24  L.  ed.  248. 


380  IMPOSED    DUTIES,  PERSONAL.  [Pai't  II. 

When  by  Act  of  Congress  a  pier  or  breakwater  is  constructed 
for  the  improvement  of  a  harbor,  no  right  to  the  land  on  which  it 
is  constructed  accrues  to  the  United  States  by  that  fact  alone,  and 
without  purchase  and  cession  from  the  State.' 

A  grantee  of  the  State  of  Maryland,  of  land  lying  under  low 
water  in  Chesapeake  Bay,  cannot  recover  from  the  United  States- 
for  use  and  occupation,  because  of  a  lighthouse  built  thereon,  as,^ 
by  the  constitutional  concession  to  Congress  of  the  power  to  regu- 
late commerce  between  the  States,  the  State  of  Maryland  gave  up 
to  the  federal  government  necessary  use  of  the  waters  and  land 
thereunder  for  that  purpose,  and  the  power  to  regulate  commerce 
includes  the  power  to  build  lighthouses  for  its  protection." 

The  title  to  lands  boi-dering  on  navigable  streams,  under  title 
derived  from  the  United  States,  stops  at  the  stream,  and  all  such 
streams  remain  public  highways.^ 

On  the  admission  of  a  new  State  into  the  Union,  the  "  shore  "^ 
or  tide  lands  therein,  not  disposed  of  by  the  United  States  prior 
thereto,  become  the  property  of  the  State." 

One  of  the  properties  of  arms  of  the  sea  is  not  to  be  the  subject 
of  private  ownership  below  high-water  mark.*  But  ;in  Massachu- 
setts by  statute  the  common  law  has  been  changed,  and  now  ripa- 
rian owners  hold  to  low-water  mark  on  navigable  rivers  and 
arms  of  the  sea.* 

In  the  Massachusetts  Colonial  Ordinance  of  1647,  which  declares 
that  in  all  places  about  and  upon  salt  water,  where  the  sea  ebba 
and  flows,  the  proprietor  of  the  land  adjoining  shall  have  property 
"  to  the  low-water  mark,"  the  words  "  to  the  low-water  mark  " 
mean  to  the  extreme  low-water  mark,'      This  ordinance,  which 

'7  Ops.  Atty.-Gen.  314.     But  see  Stockton  v.  Baltimore  d  If.  7.  R.  Co.  33 

Fed.  Rep.  9. 
'^nni  V.  United  States,  39  Fed.  Eep.  172. 

^St.  Paul  db  P.  B.  Go.  v.  Sclmrmeier,  74  U.  S.  7  Wall.  272,  19  L.  ed.  74. 
^Case  V.  Loftus,  39  Fed.  Rep.  730,  5  L.  R.  A.  684. 
^NaqleY.  Innersoll,   7  Pa.   185;  Carson  v.  Blazer,  2  Binn.  475;    Shrtink  v. 

SclmylMl  Nav.    Co.  14  Serg.  &  R.  71-74;  Bird  v.  Smith,  8  Watt.s,  434; 

Union  Canal  Co.  v.  Landis.  9  Watt.=,  228;   Wilson  v.   Forbes,   2  Dev.   L. 

30-36;  Elder  v.  Burrus,  6  Humph.  358;  McMarms  v.  Garmichael,  3  Iowa, 

1;  Raight  v.  Keokuk,  4  Iowa,  199;  Bullock  v.  Wilson,  2  Port.  (Ala.)  436. 
^Boston  V.  Richardson,  105  Mass.  358;  Paine  v.  Woods,  108  Mass.  168;  Valentine 

V.  Piper,  22  Pick.  85;  Boston  v.  Lecraw,  58  U.  S.  17  How.  426, 15  L.  ed.  118. 
''Sewall  &  D.  Cordage  Co.  v.  Boston  Water-Power  Co.  147  Mass.  61,  6  New 

Ene.    Rep.   325;   Sparhawk  v.   Bullard,   1   Neb.  95;  AttyOen.  v.  Boston 

Wharf  Co.  12  Gray.  553;  Wonson  v.  Wonson,  14  Allen,  71;  Atty-Gen.  v. 

Woods,  lOS  Mass.  436. 


Chap.  XYII.]  TITLE   IN    SEA    SHORE,  ETC.  381 

gave  to  the  proprietor  of  the  upland  property  in  the  shore  between 
high  and  low  water  mark,  secured  to  such  proprietor,  not  merely 
an  easement,  but  a  property,  to  the  land  in  fee,  with  power  to  re- 
•claim  it  by  building  wharves  so  as  to  exclude  navigation,  provided 
he  did  not  cut  off  his  neighbors'  access  to  their  houses  or  lands- 
Nor  has  the  owner  of  lands  not  accessible  by  navigation  from  the 
fea  cause  of  complaint  because  of  being  deprived,  by  the  erection 
of  wharves  or  by  the  filling  up  of  flats,  of  the  ebb  and  flow  of  the 
tide  to  his  premises  or  the  right  therebj'  to  drain  over  the  lands  of 
•others.  Nor  has  an  owner  of  land  situated  in  the  vicinity  of  tide- 
water the  right  to  have  the  water  flow  over  the  premises  of  others 
owning  flats  or  the  shore  between  high  and  low  water  mark  to  his 
own  land.' 

The  Colony  Ordinance  of  1647  provides  that  the  proprietors 
shall  not,  by  the  liberty  given  them  to  fill  up  the  flats,  have  power 
to  stop  or  hinder  the  passage  of  boats  or  other  vessels  in  or  through 
any  sea,  creeks  or  coves,  to  other  men's  houses  or  lands ;  and  it 
is  within  the  autliority  of  the  Legislature,  for  the  benefit  and  se- 
curity of  public  navigable  waters,  to  regulate  the  building  of  struc- 
tures under  navigable  waters,  wherever  the  tide  ebbs  and  flows.' 

In  Davidson  v.  Boston  dh  M.  R.  Co.^  3  Cush.  91-105,  the  pe- 
titioners were  the  owners  of  tide  mills  across  whose  flats  the  re- 
spondents had  been  authorized  to  construct  a  railroad.  It  was 
contended  that  they  had  a  right  to  have  these  flats  kept  open,  and 
to  the  free  and  unobstructed  flow  and  reflow  of  water  over  them, 
so  that  when  deprived  thereof  by  the  construction  of  the  railroad 
they  would  be  entitled  to  damages  therefor.  It  was  held  that  the 
owners  of  tide  mills  had  no  right,  either  against  the  public  or  as 
against  conterminous  or  adjacent  propi-ietors,  to  have  their  flats 
kept  open  for  the  use  of  their  mills,  but  only  to  the  flow  of  water 
in  the  channel  below  low-water  mark,  and  where  the  tide  does  not 
obb.  "The  adjoining  proprietor,"  it  is  there  said,  "to  the  extent 
of  one  hundred  rods,  may  build  solid  structures  and  thus  obstruct 
the  flow  and  reflow  of  the  tide,  without  objection,  provided  he 
does  not  wholly  cut  off  his  neighbor's  access  to  his  house  or  land  : 

^Henry  v.  Newburyport,  149  Mass.  582,  5  L.  R.  A.  179. 

«Anc.  Charier,  148,  149. 

"Com.  V.  Alger,  7  Cush.  53;  Atty-Oen.  v.  Woods,  108  Mass.  436. 


382  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

and  if  the  mill-owner  or  conterminous  proprietor  suffers  in  conse- 
quence, it  is  damnum  absque  wjuria.^^  But  the  grantee  of  land 
boundins:  on  navig-able  waters,  where  the  tide  ebbs  and  flows,  ac- 
quires a  legal  right  and  a  vested  interest  in  the  soil  of  the  shore 
between  high  and  low  water  mark,  and  not  a  mere  indulgence  or 
o-ratuitous  license,  given  without  consideration,  and  revocable  at 
the  pleasure  of  the  grantor.'  But  the  right  of  the  littoral  pro- 
prietors under  the  Ordinance  of  1641,  §  3,  has  always  been  subject 
to  this  rule:  that  until  he  should  build  upon  his  flats  or  inclose 
them,  and  wdiilst  they  are  covered  with  the  sea,  all  other  persons 
have  the  right  to  use  them  for  the  ordinary  purpose  of  navigation. 
So  long  as  the  owner  of  the  flats  permits  the  sea  to  flow  over 
them,  the  individual  right  of  property  in  the  soil  beneath  does  not 
restrain  or  abridge  the  public  right.'  He  may  build  upon  and 
inclose  it.  But  while  covered  with  the  sea,  the  public  have  the 
right  to  use  it  for  the  purpose  of  navigation."  The  owner,  in 
such  a  case,  has  a  right  to  reclaim  such  land  by  wharfing  out  or 
making  erections  thereon  beneficial  to  himself.*  Damage  to  an- 
other from  such  reclamation  is  damnum  absque  injuria.''  Pub- 
lic rio-ht  of  navigation  over  land  between  high  and  low  water 
mark,  where  the  soil  belongs  to  the  adjoining  proprietor,  is  de- 
feasible." 

Persons  owning  the  whole  of  the  soil  constituting  the  bed 
and  banks  of  a  stream  are  entitled  to  the  whole  rights  and 
profits  of  the  water  opposite  their  land,  whether  the  water  is  used 
as  a  power  to  operate  mills  and  machinery,  or  as  a  fishery,  subject 
to  the  implied  condition  that  they  shall  so  use  their  own  right  as 
not  to  injure  concomitant  rights  of  another  riparian  owner, 
and  to  such  regulations  as  the  Legislature  of  the  State  shall  pre- 
scribe.'' "Where  such  a  proprietor  owns  the  land  on  one  side 
only  of  the  stream,  his  right  extends  only  to  the  middle  thread 
of  the  stream,  as  at  common  law.'  In  constructing  and  repairing 
a  highway,  the  public  has  the  rights  of  a  land  owner  as  regards- 

1  See  Austin  v.  Carter,  1  Mass.  231;  Com.  v.  Alger,  7  Cush.  71;  Boston  v.  Le- 

crato,  58  U.  S.  17  How.  431,  15  L.  ed.  121. 
^Com.  V.  Al(/er,  7  Cash.  75;   Boston  v.  Leeniw,  58  U.  S.  17  How.  431,  15  L.. 

ed.  121. 
a  4  5  ^Boston  v.  Lecrmo,  58  U.  S.  17  How.  426,  15  L.  ed.  118. 
'  molyoke  Water-Power  Co.  v.  Lyman,  82  U.  S.  15  Wall.  500,  21  L.  ed.  133. 


Chap.   XVII.]  TITLE    IN    SEA    SHORE,  ETC.  38S 

watercourses  witliin  the  highway  limits.'  Where  the  defendant,  he- 
ing  the  owner  of  the  soil,  laid  out  a  street  on  his  land  between  liigh 
and  low  water  mark,  the  right  to  use  it  became  appurtenant  to  the 
land  of  the  adjoiners  ;  and  anything  which  obstructs  such  right  is 
a  nuisance." 

The  great  ponds  (ponds  of  more  than  twenty  acres  area)  in  the 
State  of  Massachusetts  are  owned  by  the  State,  as  public  property 
held  in  trust  for  public  uses.  The  rights  of  proprietors  owning 
land  either  on  a  great  pond  or  any  stream  flowing  from  it  are  sub- 
ordinate to  the  paramount  rights  of  the  public  declared  by  the 
Colony  Ordinance  of  1041-47,  and  are  not  regulated  b}^  the  com- 
mon law.  Each  grant  from  the  State,  of  land  upon  a  great  pond 
or  any  stream  flowing  therefrom,  carries  with  it  an  implied  reser- 
vation of  the  paramount  rights  of  the  public,  unless  the  terms  of 
grant  exclude  such  reservation.^  And  in  Maine,  rivers  are  public 
highways,  and,  under  the  ordinance,  if  they  be  navigable  rivers, — 
that  is,  M-ithin  the  ebb  and  flow  of  the  tide, — then  the  riparian 
owner  holds  to  low-water  mark ;  and  if  the  holding  is  upon  a  bay 
or  place  where  the  tide  ebbs  more  than  100  rods,  then  to  low-water 
mark,  not  exceeding  100  rods.*  The  title  to  an  island  within  one 
hundred  rods  from  the  upland  does  not  extend  to  flats  between 
the  island  and  the  mainland  when  the  channel  is  dry  at  low  water, 
unless  by  special  grant.  It  is  otherwise  as  to  the  flats  between  the 
island  and  receded  sea.*  Sand  heaps  and  bars  may  or  may  not  be 
islands."  An  isolated  sand  bank  alternately  covered  and  exposed 
by  tides,  situated  within  one  mile  from  the  Oregon  shore,  in  the 
Columbia  River,  and  entirely  disconnected  from  the  maiidands,  is 
not  tide  land,  within  the  meaning  of  that  term.'  Elevations  of  a 
mussel  bed  have  been  declared  not  to  be  islands.* 

In  Connecticut  the  owner  of  land  on  navigable  water  has  an  ex- 
clusive right  to  the  soil  between  high  and  low  water  mark  for  the 
purpose  of  erecting  wharves  and  stores  thereon.     An  invasion  of 

^Nealley  v.  Bradford,  145  Mass.  561,  5  New  Eng.  Rep.  515. 
^Richardson  v.  Boston,  60  U.  S.  19  How.  263,  15  L.  ed.  639. 
^Watuppa  Reservoir  Co.  v.  Fall  River,  147  Mass.  548,  1  L.  R.  A.  4G6. 
*UnitM  States  v.  Pacheco,  69  U.  S.   2  Wall.  587,  17  L.  ed.  865;   Stratton  v. 

Currier,  81  Me.  497,  3  L.  R.  A.  809;  Sale  v.  Piatt,  19  Pick.  191. 
» ^Bahson  v.  Tainter,  79  Me.  368,  4  New  Eng.  Rep.  661. 
''Elliott  V.  Stewart,  15  Or.  259. 
»Babson  v.  Tainter,  78  Me.  368,  4  New  Eng.  Rep.  661. 


384  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

the  owner's  right  to  soil  between  high  and  low  water  mark,  and 
his  consequent  dispossession,  is  trespass  to  real  estate  and  disseisin, 
the  same  as  though  it  were  upland.  The  mud  flats  on  a  seashore, 
between  high  and  low  water  mark,  may  be  used  for  any  purpose 
which  does  not  interfere  with  navigation,  and  the  title  to  the  up- 
land bordering  on  a  seashore,  and  the  appurtenant  rights  in  the 
shore  and  the  mud  flats  between  high  and  low  water  mark,  are 
separable,  and  either  may  be  conveyed  without  the  other.' 

In  Delaware  a  riparian  proprietor  of  land  fronting  upon  a  navi- 
irable  stream  holds  to  low-water  mark." 

In  New  Jersey,  under  the  Eiparian  Laws,  lands  below  the  high- 
water  mark  of  navigable  waters  belong  to  the  State.'  The  State 
may  either  sell  or  convey  its  title  to  a  riparian  owner  or  his  assigns, 
or  to  a  stranger,  who,  succeeding  to  its  title,  has  no  relation  to  the 
adjacent  riparian  owner  except  that  of  common  boundary," 
The  title  under  the  New  Jersey  grants  is  not  only  of  a  new  es- 
tate, but  is  a  new  subject  divided  from  the  upper  or  riparian 
property  by  a  fixed  and  permanent  boundary.  Such  grants  are 
of  the  estate  in  the  land,  and  not  of  a  mere  franchise  or  incor- 
poreal hereditament.^ 

All  navigable  waters  within  New  Jersey,  together  with  the  soil 
under  them,  belong  in  actual  proprietorship  to  the  State.  A  per- 
son acquiring  title  to  land  abutting  on  a  navigable  stream  takes 
title  only  to  the  high-water  line,  and  that  line  is  limited  by  the 
outflow  of  the  medium  high-tide  between  the  spring  and  neap 
tides.  All  below  that  line  belongs  to  the  State,  and  the  State  may, 
at  any  time  before  it  is  reclaimed  by  the  owner  of  the  adjacent 
upland,  grant  it,  for  a  public  use,  to  w^homsoever  it  sees  fit.  A 
grantee  of  lands  abutting  on  a  navigable  stream  acquires  no  pecu- 
liar rights,  as  incidents  of  his  estate,  in  the  land  beyond  the  high- 
water  line,  lying  in  front  of  his  land ;  but  in  virtue  of  a  local 
custom  long  prevalent  in  this  State,  and  now  having  the  force  of 
established  law,  the  adjacency  of  his  land  to  the  stream  invests 
him  with  a  license  to  fill  in  and  wharf  out,  on  the  public  domain, 
to  such  an  extent  as  does  not  interfere  with  the  public  rights  of 

^Ladies  Seamen's  Friend  8oc.  v.  Ralstead,  58  Conn.  144. 

^Harlan  &  H.  Co.  v.  Paschall,  5  Del.   Ch.  435. 

»  *  ^Eoboken  v.  Pennsylvania  B.  Co.  124  U.  S.  656,  31  L.  ed.  543. 


Chap.  XVII.]  TITLE    IN    SEA    SHORE,  ETC.  385 

fishing  and  navigation  ;  and  tliis  license,  when  executed,  becomes 
irrevocable,  and  confers  on 'the  riparian  owner  a  good  and  inde- 
feasible title  to  the  land  thus  reclaimed.' 

In  New  York,  under  patents  issued  in  1660  and  1686  of  lands  in 
Harlem  to  the  freeholders  of  Harlem  and  of  New  York  City, 
those  bounded  on  a  creek  over  which  the  waters  of  the  Harlem 
flow  at  hiffh  water  belona;  to  the  freeholders,  and  not  to  the  eitv." 
The  title  to  the  waters  of  Huntington  Bay  is  in  the  trustees  of  the 
Town  of  Huntington.' 

An  owner  of  lands  in  the  City  of  New  York,  fronting  on  the 
East  River,  has  no  rights  whatever  in  respect  to  the  lands  between 
high  and  low- water  mark,  except  such  as  he  may  have  derived  by 
a  grant  from  the  owner  thereof,  the  corporation  of  the  City  of 
New  York.* 

Under  Acts  1849,  chap.  302;  1868,  chap.  305  ;  1880,  chap.  518, 
— riparian  owners  of  land  on  East  River,  in  Brooklyn,  were  vested 
with  the  fee  of  the  land  extending  to  the  water  line  of  the  river ; 
they  have  a  superior  right  to  build  wharves  and  collect  tolls,  and 
may  collect  damages  for  a  wrongful  interference  with  their  rights." 

A  deed,  by  an  individual,  of  property  including  a  stream  in 
which  the  tide  ebbs  and  flows,  and  the  land  under  which  therefore 
belongs  to  the  State,  will  not  convey  the  bed  of  the  stream  bej'ond 
high-water  mark.*  The  grantee  of  lands  under  navigable  waters 
in  front  of  his  uplands  cannot  restrain  the  grantee  of  similar  ad- 
joining lands  under  water  from  erecting  thereon  dykes  which  will 
prevent  him  from  towing  ice  cakes  across  them  to  his  own  premi- 
ses; nor  can  he  question  the  legality  of  such  structure.'  In  New 
York  and  Pennsylvania  it  has  been  held  that  the  rules  of  the  com- 
mon law  do  not  apply  to  such  great  navigable  streams  as  the  Hud- 
son, Mohawk  and  Delaware  Rivers,  though  the}'-  may  not  be  tidal 

^OougTi  V.  Bell  22  N.  J.  L.  441;  Stevens  v.  Paterson  <t  N.  R.  Co.  34  N.  J.  L. 

532;  New  Jersey  Zinc  &  Iron  Co.  v.  Morris  Canal  &  Bkg.  Co.  44  N.  J.  Eq. 

398,  1  L.  R.  A.  133,  13  Cent.  Rep.  342;  Newark  Aqueduct  Board  v.  Fas- 

saic,  45  N.  J.  Eq.  393. 
^Breen  v.  Locke,  46  Hun,  291. 
^People  V.  Lowndea,  55  Hun,  4G9. 

*Bedlow  V.  New  Yoi-k  Floating  Dry  Dock  Co.  44  Hun,  878. 
^Steers  v.  Brooklyn,  102  N.  Y.  51,  1  Cent.  Rep.   798. 
^Roberts  V.  Baumgarten,  110  N.  Y.  380,  13  Cent.  Rep.  410. 
1  Knickerbocker  Ice  Co.  v.  Schultz,  116  N.  Y.  382. 
25 


3S6  IMPOSED   DUTIES,    PERSONAL.  [Part   II. 

rivers  thronghont ;  that  the  title  of  such  streams  is  in  the  govern- 
ment in  trust  for  the  people,  and  tliat  -the  State  may  use  the  wa- 
ters, or  authorize  their  use,  for  the  pui-poses  for  w^hich  they  ar& 
held  in  trust,  witliout  any  compensation  to  riparian  proprietors 
who  are  damaged  by  such  use. 

On  account  of  the  smallness  of  the  non-tidal  rivers  in  England 
tide-waters  only  were  in  fact  navigable,  and  hence  the  rule  as  tO' 
property  was  often  expressed  as  applicable  to  tide-waters  only, 
although  the  reason  of  the  rule,  the  protection  of  navigation, 
would  make  it  apply  to  all  navigable  waters.  In  many  of  the 
States  the  form  instead  of  the  substance  of  the  rule  has  been 
adopted,  and  the  public  title  to  the  shores  and  beds  of  navigable 
rivers  is  in  such  States  confined  to  tide-waters.'  In  Iowa  the  true 
rule  has  been  adopted,  and  the  soil  of  the  rivers  and  the  banks  to- 
high-water  mark  belongs  to  the  State,  and  the  title  of  the  riparian, 
proprietor  extends  only  to  that  line.' 

The  public  authorities  have  the  right,  in  Iowa,  to  build  wharves- 
and  levees  on  the  bank  of  the  Mississippi  below  high-water  mark, 
and  make  other  improvements  thereon  necessary  to  navigation  or 
public  passage  by  railways  or  otherwise,  without  the  assent  of  the 
adjacent  proprietor  and  without  making  him  compensation.*  But 
a  railroad  company,  under  the  power  of  eminent  domain  granted 
by  the  State,  cannot  appropriate  a  pier  to  its  own  use  without 
compensating  the  owner." 

The  repeal  of  the  Act  of  Congress  which  declared  the  Des 
Moines  River  to  be  a  navigable  stream  did  not  invest  riparian 
owners  with  title  beyond  high-water  mark.' 

A  pier  erected  in  the  navigable  water  of  the  Mississippi  River,, 
for  the  sole  use  of  the  riparian  owner,  without  authority  except 
such  as  may  arise  from  his  ownership  of  the  adjacent  shore,  is  an 

^People  V.  Canal  Appraisers,  33  N.  Y.  461;  Varich  v.  Smith,  9  Paige,  547,  4 
N.  Y.  Ch.  L.  ed.  811;  Carson  v.  Blazer,  2  Binn.  475;  Shrunk  v.  Schuyl- 
kill Nn-v.  Co.  14  Serg.  &  R.  71;  Bundle  v.  Delaioare  &  B.  Canal  Co.  55  U. 
S.  14  How.  80,  14  L.  ed.  335. 

^Barney  v.  Keokuk,  94  U.  S.  324,  34  L.  ed.  224. 

^McManns  v.  Carmichael,  3  Iowa,  1;  Haight  v.  Keokuk,  4  Iowa,  199;  Tom- 
lin  Y.  Dulnique,  B.  &  M.  B.  Co.  32  Iowa,  106;  Barrtey  v.  Keokuk,  94  U. 
S.  324,  24  L.  ed.  224. 

^Barney  v.  Keokuk,  94  U.  S.  324,  24  L.  ed.  224. 

^Davenport  &  N.  W.  B.  Co.  v.  Bemcick,  102  U.  S.  180,  26  L.  ed.  51. 

^Chicago,  B.  &  Q.  B.  Co.  v.  Porter,  72  Iowa,  426. 


Chap.  XYIL]  TITLE    IN    SEA    SHORE,  ETC.  387 

unlawful  structure,  and  the  owner  is  liable  for  the  sinkinir  of  a 
barge  against  it  in  the  night.'  Such  a  structure  differs  materially 
from  wharves  or  piers  made  to  aid  navigation,  and  regulated  by 
city  or  town  ordinances,  or  by  statutes  or  other  competent  authoi-- 
ity,  and  from  piers  built  for  railroad  bridges  across  navigable 
streams,  which  are  authorized  by  Acts  of  Congress  or  Statutes  of 
the  States.^ 

"Where  the  title  to  lands  cov'ered  by  rivers  which  are  naviijable 
in  fact  is  in  the  State,  whether  the  tide  ebbs  and  flows  in  them 
or  not,  the  holder  under  a  United  States  patent  of  land  bordering 
on  such  river  cannot  maintain  an  action  to  recover  damages  for 
the  removal  of  gravel  from  the  river  bed  in  front  of  his  land  below 
high-water  mark  ; '  and  a  gravel  bar  in  a  river  bed,  which  is  cov- 
ered at  the  ordinary  stage  of  high  water,  at  which  time  steamers 
pass  over  it  in  safety,  but  which  is  bare  at  low  water,  upon  which 
no  vegetation  grows,  and  which  is  not  covered  by  soil,  is  the  prop- 
ert}'^  of  the  State  and  not  of  the  riparian  proprietor.* 

By  the  laws  of  Pennsylvania  the  riparian  owners  along  the  large 
rivers  of  that  State  own  absolutely  only  to  the  bank,  and  have  no 
exclusive  right  to  the  soil  or  water  of  such  rivers  to  the  middle 
thread  of  the  water. ^  But  in  the  absence  of  anything  to  show 
that  the  parties  had  a  different  intention,  a  grant  of  land  bounded 
upon  the  other  navigable  rivers  extends  to  low-water  mark,  sub- 
ject to  the  right  of  the  public  for  the  purpose  of  navigation." 

In  Louisiana  the  proprietor  of  the  soil  adjacent  to  a  river  has  no 
right  to  appropriate  to  his  exclusive  use  the  banks  of  a  navigable 
watercourse,  because  he  has  no  property  in  the  use  thereof.  Its  use 
belongs  to  the  public'  The  bank  of  a  river  is  not  sold,  but  passes 
as  an  accessory  of  the  contiguous  land  when  sold,  and  the  property 
of  the  bank  belongs  to  the  adjacent  proprietor.*  The  City  of  New 
Orleans  has  the  right  of  building  levees  and  wharves  on  the  banks 
of  the  Mississippi  River,  within  its  corporate  limits,  for  the  public 

>  ^Atlee  V.  Northwestern  Union  Packet  Co.  88  U.  S.  21  Wall.  389,  22  L  ed. 

019. 
» *St.  LoulH,  J.  M.  &  S.  R.  Co.  V.  Ramsey  (Ark.  May  24, 1890)  8  L.  R.  A.  559. 
^Rundle  v.  Dehmare  &  R.  Canal  Co.  55  U.  S.  14  How.  80,  14  L.  ed.  335. 
^Palmer  v.  Farrell,  129  Pa.  162. 
''Sweeney  v.  Shakespeare,  42  La.  Ann.  — . 
^Leoruird  v.  Baton  Rouge,  39  La.  Ann.  275, 


388  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

utilitj,= — with  the  exceptions  established  by  paramount  law, — and 
of  collecting  reasonable  wharfage  for  their  use.' 

The  erection  of  a  wharf  by  an  owner  of  a  lot  on  San  Francisco 
Bay  was  not  only  an  interference  with  the  rightful  control  of 
the  city  over  the  space  occupied  by  it,  but  was  an  encroachment 
upon  the  soil  of  the  State,  which  it  could  remove  at  pleasure." 
Where  a  patent  issued  on  a  confirmed  Mexican  grant  describes  the 
land  conveyed  as  bounded  by  a  navigal^le  river,  the  title  extends 
only  to  the  edge  of  the  stream,  though  a  portion  of  the  river  be- 
tween an  opposite  island  and  the  mainland  be  not  navigable.* 
Under  the  California  statutes,  a  title  to  a  lot  on  the  Bay  of  San 
Francisco  was  in  subordination  to  the  control  of  the  city  over  the 
space  immediately  beyond  the  line  of  the  water-front,  and  to  the 
j'ight  of  the  State  to  regulate  the  construction  of  wharves  and  other 
improvements.* 

In  Oregon,  at  the  time  of  the  platting  of  Astoria,  by  one 
McClure,  in  1847,  the  title  of  the  land  lying  between  high  and 
low  water  mark  upon  the  Columbia  River  was  in  the  State,  and 
could  not  be  conveyed  by  a  riparian  owner.* 

In  Minnesota,  the  title  to  the  lands  bordering  on  navigable 
streams,  under  title  derived  from  the  United  States,  stops  at  the 
stream,  and  all  such  streams  remain  public  highways.'  The  State 
holds  the  title  to  the  soil  in  navigable  waters  to  low-water  mark  in 
trust  for  the  people,  and  chiefly  for  the  protection  of  the  right  of 
navigation.  But  a  riparian  owner  is  entitled  to  fill  in  and  make 
improvements  in  shallow  waters  in  front  of  his  land  to  the  line  of 
navigability  ;  and  his  rights  therein  can  be  interfered  with  only  by 
the  State  for  public  purposes.^ 

In  Kentucky  a  riparian  proprietor  on  a  navigable  stream  above 
tide-water  has  the  right  to  use  the  banks  and  water  in  any  manner 
not  inconsistent  with  the  public  easement  or  right  of  way.  Patents 
to  land  on  each  side  of  a  navigable  river,  calling  for  the  river  and 

^New  Orleans,  M.  &  T.  R.  Co.  v.  mierman,105  U.  S.  166,  26  L.  ed.  1015. 

« Weber  v.  State  Harbor  Comrs.  85  U.  S.  18  Wall.  57,  31  L.  ed.  798. 

'Packer  v.  Bird,  71  Cal.  134. 

*  Weber  v.  State  Birbor  Gomrs.  85  U.  S,  18  Wall.  57,  21  L.  ed.  798. 

^Hobson  V.  Monteith,  15  Or.  251. 

^St.  Paul  &  P.  R.  Go.  V.  Schurmeier,  74  U.  S.  7  Wall.  272,  19  L.  ed.  74. 

''Miller  v.  Mendenhall,  43  Minn.  95,  8  L.  R.  A.  89. 


Chap.  XVII.]  TITLE    IN    SEA    SHORE,  ETC.  889 

its  meanders,  vest  in  eacli  grantee  tlie  right  to  the  soil  under  tlie 
water  on  his  side  of  the  river,  to  its  thread  or  centre ;  and  hence 
a  subsequent  patent  ap])ropriating  the  bed  of  the  river  is  void.' 

Above  the  line  where  the  tide  ceases  to  have  any  effect,  the  rule 
of  the  common  law  as  to  property  on  tidal  rivers  is  reversed  in 
most  States  and  the  property  in  the  soil  or  bed  of  the  river  is 
in  the  riparian  proprietors ;  and  this  is  true  also  of  all  streams,  not 
tidal,  that  are  not  legally  navigable.' 

In  Missouri  the  Act  of  Congress  providing  for  the  admission  of 
Missouri  into  the  Union  left  the  rights  of  riparian  owners  on  the 
Mississippi  River  to  be  settled  according  to  the  principles  of  state 
law.'  The  eastern  boundarj'  of  the  City  of  St.  Louis  is  the  east- 
ern boundary  of  Missouri  in  the  middle  of  the  channel  of  the  Mis- 
sissippi River.*  Where  a  street  or  passageway  was  permanently 
estabhshed,  for  public  use,  between  the  river  and  a  block  of  land, 
when  the  town  was  laid  out,  the  owners  of  that  block  were  not 
riparian  proprietors  of  the  land  between  it  and  the  river.' 

A  riparian  owner  on  a  navigable  stream  cannot  maintain 
a  suit  at  common  law  against  public  agents  to  recover  conse- 
quential damages  resulting  from  obstructing  a  stream  in  pursuance 
of  legislative  authority,  unless  that  authority  has  been  transcended 
or  unless  there  was  a  wanton  injury  inflicted,  or  carelessness,  neg- 
ligence or  want  of  skill  in  causing  the  obstruction.' 

'  Williamsburg  Boom  Co.  v.  Smith,  84  Ky.  373. 

»See  Elder  y.  Burrus,  6  Humph.  358,  366;  Stuart  v.  Clark,  2  Swan,  9,  58 
Am.  Dec.  49;  Gaston  v.  Mace,  33  W.  Va.  14,  5  L.  R.  A.  892;  Mill  River 
Woolen  Mfg.  Co.  v.  Smith,  34  Conn.  463;  Norway  Plains  Co.  v.  Bradley, 
53  N.  H.  86;  Fletcher  v.  Phelps.  28  Vt.  257,  262;  Holden  v.  Robinson 
Mfg.  Go.  65  Me.  315;  Com.  v.  Vincent,  108  Mass.  441,  447;  Uughcs  v. 
Providence  &  W.  R.  Co.  3  R.  I.  508,  512;  Tyler  v.  Wilkimon,  4  Mason, 
397;  Chenango  Bridge  Co.  v.  Paiqe,  83  N.  Y.  178;  Morgan  v.  King,  35  N. 
Y.  454;  Mott  v.  Mott,  68  X.  Y.  246;  Pierrepont  v.  Loveless,  72  N.  Y.  311, 
216;  Canal  Appraisers  v.  People,  17  Wend.  571,  597;  Fort  Plain  Bridge 
Co.  V.  Smith,  30  N.  Y.  44;  People  v.  Canal  Appraisers,  33  N.  Y.  401; 
Palmer  v.  Mulligan,  8  Caines,  307;  Varick  v.  Smith,  9  Pai,s;e,  547,  4  N. 
Y.  Ch.  L.  ed.  811;  Canal  Fund  Comrs.  -v.  Eempshall,  26  Wend.  404; 
McCullough  v.  Wall,  4  Rich.  L.  68;  Hovck  v.  Tales,  82  111.  179;  Wash- 
ington Ice  Co.  V.  Shortall,  101  111.  46;  Ensminger  v.  People,  47  111.  384; 
Chicago  v.  Laflin,  49  111.  172;  Gavit  v.  Chambers,  3  Ohio,  496;  June  v. 
Purcell,  36  Ohio  St.  396;  Maxwell  v.  Bay  City  Bridge  Co.  41  Mich.  453, 
466;  Olson  v.  Merrill,  42  Wis.  203. 

*St.  Louis  V.  Myers,  113  U.  S.  566,  28  L.  ed.  1181. 

*St.  Louis  Public  Schools  v.  Risley,  77  U.  S.  10  Wall.  91,  19  L.  ed.  850;  Jones 
V.  Soulard,  65  U.  S.  34  How.  41,  16  L.  ed.  604. 

^St.  Louis  Public  ScJwols  v.  Risley,  77  U.  S.  10  Wall.  91,  19  L.  ed.  850. 

^NortJwrn  Transp.  Co.  v.  Chicago,  99  U.  S.  635,  25  L.  ed.  336. 


CHAPTER  XYIIL 

NAVIGABLE  WATER  FilOiNT-CONTROL  AND  CARE  THEREOF. 

Sec.  42.   Control  of  Municipal  Corporation  over  'Sliores  and  Banks 

of  Navigable  Waters.  —  Duty  of  Care  of  Structures  thereon. 
Sec.  43.   Title  to  Lands  Conveyed  along  a   Water  Front, 
Sec.  44.  Alluvion,  Accretion  and  Dereliction. 

Section  42. — Control  of  Municipal  Corporation  over 
Shores  and  Banks  of  J^avigahle  Waters.— 
Daty  of  Care  of  Structures  thereon. 

The  Legislature  can,  for  the  protection  of  the  rights  of  the  pub- 
lic in  navigation,  or  for  the  security  of  the  coast,  regulate  the  use 
of  the  territory  between  high  and  low  water  mark,  and  can,  with- 
out compensation,  prohibit  taking  gravel  from  a  beach  or  building 
upon  flats,  whenever  in  its  opinion  such  prohibition  is  necessary.' 
So  a  city  has  the  right  to  control,  manage  and  administer  the  use  of 
the  banks  of  a  navigable  river  within  her  limits,  for  the  public  con- 
venience and  utility  ;  to  establish  landing  places  for  vessels,  boats 
and  barges ;  to  determine  what  are  proper  and  needed  facilities  for 
commerce,  and  on  what  part  of  the  bank  or  batture  they  maybe  es- 
tablished.* A  city  is  bound  to  maintain  and  keep  in  repair  a 
wharf,  although  its  use  is  solely  for  the  benefit  of  the  department 
of  charities  and  corrections,  and  is  liable  for  failure  to  keep  it  in 
safe  condition.*  A  public  pier  in  a  city  is  a  part  and  parcel  of  its 
public  streets,  and  the  public  have  a  right  to  enter  upon  the  pier 
in  the  same  manner  as  upon  public  streets.*     A  landing  place 

^Com.  V.  Tewkshury,  11  Met.  55;  Com.  v.  Alfjer,  7  Cash.  53,  82,  104;  Atty- 
Oen.  V.  Boston  <&  L.  R,  Co.  118  Mass.  345-349:  Henry  v.  Newhuryport, 
149  Mass.  582,  5  L.  R.  A.  179:  Weber  v.  State  Harbor  Comrs.  85  U.  S.  18 
Wall.  57,  21  L.  ed.  798;  Neio  Orleans.  M.  cfe  T.  R.  Co.  v.  Elierman,  105  U. 

S.  166,26  L.  ed.  1015;  Sweeney  v.  Shakspeare,  42  La.  Ann. ;  Atlee  v. 

Northwesiern  Union  Packet  Co.  88  U.  S.  21  Wall.  389,  22  L.  ed.  619;  Mil- 
ler v.  Mendenhall,  43  Minn.  95.  8  L.  R.  A.  89;  Northern  Transp.  Co.  v. 
Chicago,  99  U.  S.  635,  25  L.  ed.  336. 

^Sweeney  v.  Shakspeare,  42  La.  Ann. ;  Weber  v.  State  Harbor  Comrs.  85  U. 

S.  18  Wall.  57,  21  L.  ed.  798. 

^Philadelphia  &  R.  R.  Co.  v.  New  York,  38  Fed.  Rep.  159. 

*Oluck  V.  Ridgewood Ice  Co.  (Sup.  Ct.  Mar.  28,  1890)  31  N.  Y.  S.  R.  99. 


"Chap.  XVIII.]       CONTROL    OF    NAVIGABLE    WATERS.  391 

■does  not  become  a  wharf  by  so  designating;  it  in  an  ordinance,  but 
to  become  such  it  must  be  improved  for  that  purpose;'  and  a  mu- 
nicipal corporation  has  no  power  to  impose  a  tonnaoje  or  wliarfage 
tax  upon  vessels  landing  on  the  natural  bank  of  a  river,  even 
though  the  wharf  limits  are  established  by  ordinance.' 

A  shed  or  warehouse  in  connection  with  an  elevator  for  the 
storage  and  handling  of  grain  or  other  merchandise,  which  is  one 
of  the  connecting  links  between  the  great  land  and  water  common 
■carriers,  although  it  is  private  property  and  operated  for  private 
gain,  is  for  a  public  use  and  has  a  public  trust  attached  to  it,  and 
therefore  a  lease  therefor  of  part  of  a  public  wharf  is  not  void  on  the 
ground  that  the  property  is  to  be  used  for  private  purposes.' 

A  State  does  not,  by  granting  the  use  of  a  water  front  to  a  city, 
surrender  control  of  the  navigable  waters  on  the  front  and  the 
right  to  erect  proper  wharves  and  use  them.*  States  within  which 
lands  bordering  on  a  river  are  situated  have  the  right,  not  only  to 
-control  and  levee  its  banks,  to  prevent  the  adjoining  country  from 
overflow,  but  to  compel  riparian  owners  to  maintain  such  levees  at 
their  own  expense.' 

The  owner  of  coal  boats  and  barges  moored  to  the  river  bank 
within  the  city  limits  has  no  authority,  derivable  from  the  pro- 
•  piietor  of  riparian  property,  through  instrumentality  of  a  lease,  to 
build  houses  in  which  to  store  apparatus  and  tackle  and  shelter  his 
men,  by  resting  their  foundations  on  piles  driven  in  batture  out- 
side the  levees.*  Batture  is  an  elevation  of  the  bed  of  a  river 
under  the  surface  of  the  water  ;  but  the  term  is  sometimes  used 
to  signify  the  same  elevation  when  it  has  risen  above  the  surface." 
The  use  of  the  batture  as  a  landing  and  wharf  for  the  reception 
of  coal  boats  and  coal  is  a  public  use,  the  public  character  of  which 
is  not  destroyed  by  the  fact  that  it  is  temporarily  farmed  out  to 
particular  parties.' 

The  high  measure  of  care  justly  due  from  a  wharfinger  to  navi- 
gators whom  he  invites  to  bring  to  his  wharf  craft  for  safe  mooring 

'  ^Gape  Oirardeau  v.  Campbell,  26  IMo.  App.  12. 

^Belcher's  Sugar  Ref.  Co.  v.  St.  Louis  Grain  Elev.  Co.  (Mo.  June  2,  1890)  8  L. 

R.  A.  801. 
*Payne  v.  English,  79  Cal.  540. 
''Lamb  v.  Reclamation  Dint.  No.  lOS,  73  Cal.  125,  and  cases  cited. 

^Siceeney  v.  Shaknpeare,  42  La.  Ann.  . 

'  ^Leonard  v.  Baton  Rouge,  39  La.  Ann.  275. 


392  IMPOSED  DUTIES,  PERSONAL.  [Part  11. 

is  not  due  from  a  city  to  the  owner  of  a  floating  coal  yard  kept  fas- 
tened to  the  shore,who  is  in  the  exchisive  possession  of  the  place  and 
pays  a  fixed  rental  to  the  citj.'  If  the  occupant  of  a  float  kept  fas- 
tened to  the  shore,  who  pays  a  fixed  rental  to  the  city  for  the  use 
thereof,  made  no  complaint  when  some  of  the  posts  to  which  the 
float  was  attached  were  removed,  and  did  nothing  to  have  them 
replaced  or  himself  to  provide  substitutes,  the  city  is  not  liable 
for  the  carrying  off  of  the  float  by  the  breaking  of  the  fastenings 
in  a  flood  of  water  and  ice,  especially  where  the  posts  to  which 
they  were  attached  held  firm." 

The  fact  that  a  city  has  adopted  an  ordinance  providing  a  method 
for  the  removal  of  vessels  sunk  at  any  of  the  city  docks  does  not 
charge  it  with  the  duty  of  enforcing  the  ordinance,  or  make  it 
liable  for  its  non-enforcement.' 

One  who,  in  attempting  to  reach  a  dock  by  means  of  a  gang 
plank  which  was  not  provided  with  guards,  stepped  off  to  the  side 
and  fell  through  a  stair  opening  which  was  left  uncovered,  is  not 
entitled  to  recover  against  the  city  for  his  injuries,  where  there  is- 
no  proof  that  the  boat  or  gang  plank  was  the  property  of  the  city, 
or  that  they  were  managed  or  operated  by  its  servants,  or  that  the 
dock  needed  repair  or  was  defective  or  dangerous.* 

A  plaintiff  in  ejectment  claiming  a  strip  of  land  under  water 
adjoining  a  dock,  under  a  deed  which  conveyed  all  riparian  and 
water  rights,  but  subject  to  the  use  and  rights  of  the  people  in  so- 
much  as  is  included  in  the  highway  and  public  landing,  the  deed 
being  made  when  the  dock  was  owned  by  the  town  and  the  piece 
of  land  in  controversy  was  used  as  a  slip  to  land  coal  and  freight, 
neither  plaintiff  nor  his  grantors  ever  having  had  possession  there- 
of, is  not  entitled  to  recover  against  one  employed  by  the  village 
as  dock  master,  having  a  lease  or  license  from  the  village,  and  oc- 
cupying a  building  erected  on  piles  and  connected  with  the  dock 
by  a  bridge.* 

1  "^Jackson  v.  Allegheny,  41  Fed.  Rep.  886. 

^Coonley  v.  Albany,  57  Hun,  327. 

^Holland  v.  Ne^o  York  (C.  P.  April  7,  1890)  30  N".  Y.  S.  R.  850. 

^Stimmel  v.  Watts  (Sup.  Ct.  Feb.  10,  1890j  30  N.  Y.  S.  R.  380. 


Cbap.  XVIII.]       TITLE    TO    LANDS    ALONG    WATER    FRONT.  393 

Section  '^Z.— Title  to  Lands  Conveyed  along  a  Water 

Front. 

Where  lands  are  bonnded  on  sea  shore,  the  shore  itself  will  not 
be  considered  as  within  the  boundaries.  The  owner  holds  to  higli- 
water  mark.'  The  owner  takes  the  chance  of  gradual  loss  as  well 
as  of  gradual  gain.^  The  external  bounds  of  estates  situated  upon 
the  shore  of  the  sea  or  of  navigable  rivers  may  gradually  shift  as 
the  water  recedes  or  encroaches,  although  the  right  to  the  shore 
itself  of  course  remains  in  the  Crown  or  State.'  The  "ocean,"  as 
description  in  a  deed,  calls  for  the  line  of  high-water  mark  as  a 
boundary,  with  liability  to  fluctuations.' 

The  principles  governing  the  rights  of  riparian  proprietors  do 
not  apply  to  a  grant  of  land  bordering  on  a  lake  and  marsh.  The 
grantee,  by  his  patent,  takes  to  the  lines  of  his  fractional  division.^ 
Where  one  who  owns  a  tract  of  land  that  surrounds  and  underlies 
a  non-navigable  lake,  the  length  of  which  isdistinguishably  gi-eater 
than  its  breadth,  conveys  a  parcel  thereof  that  borders  on  the  lake, 
by  a  description  that  makes  the  lake  one  of  its  boundaries,  the  pre- 
sumption is  that  the  parties  do  not  intend  that  the  grantor  should 
retain  the  title  to  the  land  between  the  edge  of  the  water  and  the 
centre  of  the  lake ;  and  the  title  of  the  purchaser,  therefore,  will 
extend  to  the  centre  thereof.  If  the  call  in  the  description  of 
land  lying  by  an  inland  non-navigable  lake  be  to  and  thence  along 
the  margin  of  the  lake,  the  title  of  the  purchaser  will  extend  to 
low-water  mark  only.  If  a  description  be  b}^  metes  and  bounds, 
no  reference  being  made  therein  to  a  lake  by  which  the  land  lies, 
then  only  the  land  included  within  the  lines  as  fixed  by  the  terms 
used  by  the  parties  to  the  deed  will  pass  to  the  grantee.'     Where 

^Storer  v.  Freedman,  6  Mass.  439;  Littkiield  v.  Mnxicell,  31  Me.  134;  Nile/tv. 

Patch,  13  Gray,  257;  3  Kent,  Com.  437;  East  Hampton  v.  Kirk,  6  Ilun, 

257;   Uiiited  States  v.  Pacheco,  69  U.  S.  2  Wall.  587,  17  L.  ed.  865. 
^St.  Clair  Co.   v.  Lovingston,  90  U.  S.  23  Wall.  46,  63,  23  L.  ed.  59,  62;  New 

Orleans  v.  United  States,  35  U.  S.  10  Pet.  662,  717,  9  L.  ed.  573;  Chapman 

V.  Uoskins.  2  Md.  Ch.  485;  Oiraud  v.   Hucjhes.  1  Gill  &  J.  249;  Berry  v. 

Snyder,  3  Bush,  266,  277;  Smith  v.  St.  Louis  Public  Schools,  30  Mo.  290; 

Stevens  V.  Paterson  d  iV.  B.  Co.  34  N.  J.  L.  532,  540;  Municipality  iVo.  £ 

V.  Orleans  Cotton  Press,  18  La.  213. 
'Scratton  v.  Brown,  4  Barn.  &  C.  485;  Rex  v.  Yarhorourjh,  3  Barn.  &  C.  91; 

Gould,  Waters,  285;  Nixon  v.  Walter,  41  N.  J.  Eq.  103,  4  Cent.  Rep.  875. 
*Mulry  V.  Norton,  100  N.  Y.  424,  1  Cent.  Rep.  748. 
'■Palmer  v.  Dodd,  64  Mich.  474,  7  West.  Rep.  797. 
*Lemieck  v.  Nye,  8  L.  R.  A.  578,  47  Ohio  St.  — . 


■394:  IMPOSED    DUTIES,  PERSONAL.  [Part    II. 

the  line  is  high-water  mark  of  a  pond,  tlie  grantee  is  not  entitled 
to  any  accretions  of  land  left  dry  by  the  pond  receding.'  Where 
there  is  a  boundary  npon  a  fixxed  monnnient  which  has  width, — as 
a  way,  stream  or  wall, — even  if  the  measurements  run  only  to  the 
side  of  it,  the  title  to  the  land  conveyed  passes  to  the  line  which 
would  be  indicated  by  the  middle  of  the  monument.' 

A  deed  of  land  on  one  side  of  a  pond,  describing  it  as  beginning 
at  a  natural  object,  and  running  along  said  pond  to  the  outlet 
thereof,  does  not  convey  the  land  to  the  centre  of  the  pond,  but 
only  to  low-water  mark.'  Deeds  in  a  chain  of  title  plainly  indi- 
cating that  the  boundary  of  the  land  is  the  bank  of  a  pond  pass  no 
title  to  the  land  under  the  pond,  either  to  the  grantees  in  such 
deeds  or  to  their  grantees  or  assigns."  The  boundary  of  land  "on 
the  edge  of  the  pond"  is  not  a  boundary  by  a  stream  which  may 
change  by  gradual  washings  and  deposits,  but  the  territory  is  lim- 
ited by  a  defined  boundary,  without  regard  to  the  contingent  sub- 
sidence of  the  water  constituting  the  pond  and  thereby  leaving  the 
land  dry.' 

The  doctrine  that,  on  rivers  where  the  tide  ebbs  and  flows, 
grants  of  land  are  bounded  by  ordinary  high-water  mark,  has  no 
application  in  cases  of  lands  bounded  by  fresh-water  rivers.  Nor 
does  the  size  of  the  river  alter  the  rule.'  All  grants  of  land 
bounded  by  fresh-water  rivers,  where  the  expressions  designating 
the  water  line  are  general,  confer  the  proprietorship  on  the  grantee 
to  the  middle  thread  of  the  stream,  and  entitle  him  to  the  accre- 
tions,' except  where  the  State  claims  the  ownership. 

The  line  of  one  owning  to  the  centre  of  a  stream  remains  at 
the  centre,  however  variable ;  but  if  his  line  is  a  fixed  and  per- 
manent one,  his  boundaries  are  not  enlarged  by  the  receding  of 
the  stream.* 

Where  a  water  line  is  the  boundary  of  a  named  lot,  that  line  re- 
mains the  boundary,  no  matter  how  it  shifts ;  and  a.  deed  describ- 
ing the  lot  by  number  or  name  conveys  the  land  up  to  that  shift- 

^Cook  V.  McGlure,  58  N.  Y.  437,  17  Am.  Rep.  270. 

^ Gould  V.  Eastern  E.  Co.  143  Mass.  85,  2  New  Eng.  Rep.  595. 

^Gouverneur  v.  National  Ice  Co.  57  Hun,  474. 

4  ^Holden  v.  Chandler,  61  Vt.  291. 

6  \Tones  v.  Soulard,  65  U.  S.  24  How.  41,  16  L.  ed.  604. 

^Uolden  v.  Chandler,  61  Vt.  291. 


•Chap.  XVIIL]       TITLE    TO    LANDS    ALONG    WATEK    FliONT.  305 

ing  line.'  Under  a  patent  bounded  by  a  meandered  stream,  tlie 
«treara  itself,  and  not  the  meandered  line,  constitutes  the  boundary 
line." 

The  question  as  to  whether  a  grant  of  land  bounded  upon  a 
navigable  river  extends  to  high  or  low  water  mark  is,  in  each  case, 
•determinable  upon  the  true  and  proper  construction  of  the  grant 
itself.'  It  cannot  be  presumed  that  a  conveyance  of  a  few  feet  of 
flats  between  a  street  and  wall  bordering  on  a  channel  carried  with 
it  any  right  in  the  channel,  especially  where  a  portion  of  the  land 
"and  a  wharf  of  the  grantors  intervened.'' 

Land  under  water,  extending  from  low-water  mark  to  the  mar- 
gin of  the  river  or  water  line  as  permanently  raised  by  clams,  is 
not  included  in  a  tax  deed  embracing  land  to  the  margin  of  the 
river,  describing  the  land  generally  as  land  lying  between  a  cer- 
tain street  in  a  plat  and  the  river.*  Where  a  deed  conveys  the 
•entire  water-front,  land  under  water,  easements  and  privileges  in 
a  river  upon,  by  or  appurtenant  to  a  lot,  a  provision  in  the  deed 
for  additional  flowage  is  not  inconsistent  with  the  intention  to 
^rant  the  fee  of  so  much  of  the  shore  above  low-water  mark  as 
is  covered  by  water  raised  by  dams  existing  at  the  date  of  the 
deed.* 

In  the  absence  of  any  reservation  or  incompatible  grant,  the  lay- 
ing out  of  a  street  in  front  of  upland  does  not  deprive  the  owner 
•of  his  general  riparian  rights/ 

A  railroad  company  which  has  not  acquired  or  used  land  for 
any  purpose  except  the  construction  thereon  of  its  roadbed  is  not 
an  adjacent  owner  of  lands  under  water,  within  the  meaning  of 
the  New  York  Statute  relating  to  grants  of  such  lands ;  and  an 
•owner  of  lands  bordering  on  a  river  remains  an  adjacent  owner, 
within  the  meaning  of  the  New  York  Statute  relating  to  grants  of 
land  under  water,  after  the  construction  of  a  railroad  at  some  dis- 
tance from  the  shore,  leaving  a  bay  of  considerable  size  between 
the  road  and  the  original  shore  line,  into  which  the  tide  ebbs  and 

^East  Omaha  Land  Co.    v.  Jeffries,  40  Fed.  Rep.  386;  Jefferis  v.  East  Omaha 

Land  Co.  134  U.  S.  178,  33  L.  ed.  873. 
^Sphung  v.  Moore,  120  Ind.  352. 
^Palmer  v.  Farrell,  129  Pa.  162. 

*  Ladies  Seamen's  Friend  Soc.  v.  Ralstead,  58  Conn.  144. 

*  ^Eauiman  v.  St.  Anthony  Falls  Water-Poicer  Co.  43  Minn.  60. 
'^  Prior  V.  Comstock,  17  R.  I.  — . 


396  IMPOSED   DUTIES,  PERSONAL.  [Part  11, 

flows,  and  in  which  the  owner's  lands  are  washed  by  the  waters  of 
tlie  river.' 

Section  44. — Alluvion,  Accretion   and  Dereliction. 

Alhivion  is  an  addition  to  riparian  land,  gradually  and  imper- 
ceptibly made  by  the  water  to  which  the  land  is  conterminous.* 
Alluvion,  in  tlie  French  law,  is  an  increase  of  land  which  is  made 
by  degrees  {peu  dpeu)  on  the  shores  of  the  sea,  of  navigable  and 
other  rivers,  by  the  earth  which  the  water  brings  there.'  It  is 
imperceptible  in  its  progress,  but  becomes  perceptible  by  lapse  of 
time,  and  although  the  quantity  of  land  gained  from  the  waters 
may  eventually  be  very  great,  the  State  will  not  be  entitled  to  it, 
if  it  be  added  insensibly  and  by  slow  degrees.  But  the  accretion 
of  several  acres  of  land  at  the  mouth  of  the  Chicago  River,  formed 
from  earth  washed  there  by  the  waters  of  Lake  Michigan,  and 
deposited  against  a  pier  constructed  by  the  general  government 
for  the  improvement  of  the  harbor,  must  be  regarded  as  belong- 
ing to  the  United  States.*  By  alluvion,  as  it  is  used  in  law,  is 
meant  such  slow,  gradual  and  insensible  accretion  that  it  cannot 
be  shown  at  what  time  it  occurred."  This  is  the  rule  of  the  civil 
law  as  well  as  of  the  common  law.  The  former  states  it  thus: 
"That  ground  which  a  river  has  added  to  your  estate  by  alluvion 
becomes  your  own  by  the  law  of  nations,  and  that  is  said  to  be  al- 
luvion w^hich  is  added  so  gradually  that  no  one  can  judge  how 
much  is  added  in  each  moment  of  time.'"  It  cannot  be  granted 
by  the  State  as  vacant  land,  but  belongs  to  the  riparian  proprietor.' 

^Rumsey  v.  Neio  York  &  N.  E.  R.  Go.  114  N.  Y.  423. 

•^St.  Clair  County  v.  Lovingston,  90  U.  S.  23  Wall.  46,  23  L.  ed.  53. 

sQuyot,  Repertaire  Universelle,  113. 

*5  Ops.  Atty-Gen.  264;  Doev.  Beebe,  54  U.  S.  13  How.  25,  14  L.  ed.  35. 

^Hopkins  Academy  v.  Bickinson,  9  Gush.  551. 

*Coop.  Inst.  tit.  2,  §  1;  Angell,  Watercourses,  §  53;  Tyler,  Law  of  Bound- 
aries, 83,  84;  Harg.  Tracts,  De  Jure  Mar  in,  cap.  1;  2  Bl.  Corn.  262;  2 
Bract,  lib.  2,  cap.  2,  §  2;  Schultes,  118;  Puff.  4,  7,  12;  Code  Napoleon, 
556,  561;  Phear,  Rights  of  Waters,  12;  Halseyy.  McCormick,  18  N.  Y. 
147. 

"'Munidpality  No.  2  v.  Orleans  Cotton  Press,  18  La.  123;  Deerfield  v.  Arms, 
17  Pick.  41;  Pulley  v.  Municipality  No.  2,  18  La.  278;  Patterson  v.  Gel 
ston,  23  Md.  432;  Morgan  v.  ticott,  26  Pa.  51;  Lafayette  v.  Holland,  18  La. 
286;  Kraut  V.  Crawford,  18  Iowa,  549;  GerrisJi  v.  Clough,  48  N.  II.  9;  St. 
Louis  Public  Schools  v.  Risley,  40  Mo.  356;  Emans  v.  Tarnbull,  2  Johns. 
322;  3  Kent,  Com.  marg.  p.  428;  Smith  v.  St.  Louis  Public  Sc/wols,  30  Mo. 


Chap.  XYIIL]     ALLUVION,  accretion  and  dereliction.  397 

If  by  the  union  of  natural  and  artificial  causes  the  accretion  oc- 
curs it  is  for  the  benefit  of  the  riparian  owner.'  The  same  rule 
holds  if  the  cause  be  artificial.' 

When  soil  has  been  wronofull}'  deposited  by  human  hands  in 
the  ocean  or  other  public  waters,  in  front  of  the  uplands,  so  that 
the  water-line  is  carried  f  urtlier  out,  the  same  rule  applies  as  when 
such  a  deposit  has  been  gradually  made  by  natural  causes,  ?'.  e., 
the  accretion  becomes  the  property  of  the  owner  of  the  upland, 
and  his  title  still  extends  to  the  water-line.'  If  an  island  in  a 
non-navigable  stream  results  from  accretion,  it  belongs  to  the 
owner  of  the  bank  on  the  same  side  of  the  filum  aquce.^  If 
formed  in  the  centre,  so  as  to  divide  the  thread  of  the  river,  it 
will  be  divided  between  the  owners  of  the  opposite  banks  accord- 
ing to  the  original  thread  of  the  river  between  them.' 

Upon  formation  of  alluvion  on  lands  on    unnavigable  rivers, 

290;  Spiqener  v.  Cooner,  8  Rich.  L.  301;  Hopkins  Academy  v.  Dickinson. 
9  Gush.  551;  New  Orleans  v.  United  States,  85  U.  S.  10  Pet.  662,  9  L.  ed. 
573;  Pen-y  v.  Pratt,  31  Conn.  442;  Jones  v.  Johnston,  59  U.  S.  18  How. 
150,  15  L.  ed.  320;  Barre't  v.  New  Orleans,  13  La.  Ann.  105;  Johnston  v. 
Jones,  66  U.  S.  1  Black,  209,  17  L.  ed.  117:  Jones  v.  Soulard,  65  U.  S.  34 
How.  41.  16  L.  ed.  604;  Banks  v.  Ogden,  69  U.  S.  2  Wall.  57,  17  L.  ed. 
818;  St.  Louis  Public  Schools  v.  Risley,  77  U.  S.  10  Wall.  91,  19  L.  ed. 
850  ;  Morgan  v.  Livingston,  6  Mart.  O.  S.  216  ;  Livingi^ton  v.  Heer- 
man,  9  Marl.  O.  S.  656;  Rex  v.  Tarborough,  3  Barn.  &  C.  91,  2  Blisrli, 
N.  R.  147;  Barre  v.  New  Orleans,  22  La.  Ann.  612;  Gifford  v.  Tarbor- 
ough, 5  Bing.  162;  Hagan  v.  Campbell,  8  Port.  (Ala.)  9,  33  Am.  Dec.  267; 
Chapman  v.  Hoskins.  2  Md.  Ch.  485;  Giraud  v.  Hughes,  1  Gill.  &  J.  249; 
Ridgely  v.  Johnson,  1  Bland.  Ch.  316,  note;  Goodsell  v.  Lawson,  42  Md. 
diS-yMinto  V.  Delaney,  7  Or.  337;  Lammers  v.  Nissen,  4  Neb.  245;  Ingra- 
ham,v.  Wilkinson,  4  Pick.  268,  273;  St.  Glair  County  v.  Lovinqston,  90 
U.  S.  23  Wall.  46,  23  L.  ed.  59;  Barney  v.  Keokuk,  94  U.  S.  324,  24  L. 
ed.  224;  Niehaus  v.  Shepherd,  26  Ohio  St.  45;  Baltimore  &  0.  R.  Co.  v. 
Chase,  43  Md.  23;  Cook  v.  Burlington,  30  Iowa,  94,  6  Am.  Rep.  649;  Ste 
phenson  v.  Goff,  10  Rob.  (La.)  99,  43  Am.  Dec.  171. 

^Adains  v.  Frothingham,  3  Mass.  352,  3  Am.  Dec.  151;  People  v.  Central  R. 
Co.  42  N.  Y.  315. 

'^Godfrey  v.  Altoti,  12  111.  37;  Halsey  v.  McCormick,  18  N.  Y.  149;  Lockwood 
V.  New  York  &  N.  H.  R.   Co.  37  Conn.  387. 

^Steers  v.  Brooklyn,  101  N.  Y.  51,  1  Cent.  Rep.  798;  Huse  v.  Glover,  119  U. 
S.  543,  30  L.  ed.  487. 

•»2  Washb.  Real  Prop.  452,  453;  2  Sharswood,  Bl.  Com.  261,  note;  3  Kent, 
Com.  428;  Hargrave,  Law  Tr.  5;  Hale,  De  Jur.  Mar.  14;  Rex  v.  Tarbor- 
ough, 3  Barn.  &  C.  91,  107;  Ex  parte  Jennings,  6  Cow.  537,  note;  Ingra- 
ham  V.  Wilkinson,  4  Pick.  268;  Deerfield  v.  Anns,  17  Pick.  41;  Woodbury 
V.  Short,  17  Vt.  387. 

^Ingraham  v.  Wilkinson,  4  Pick.  268,  16  Am.  Dec.  342;  Deerfield  v.  Arms, 
17  Pick.  41,  28  Am.  Dec.  276;  Hopkins  Academy  v.  Dickinson,  9  Cush. 
548;  BatcMder  v.  Keniston,  51  N.  H.  496;  Johnston  v.  Jones,  66  U.  S.  1 
Black,  209,  223,  17  L.  ed.  117,  121;  Clark  v.  Campau,  19  Mich.  325; 
Seneca  Nation  v.  Knight,  23  N.  Y.  498. 


398  IMPOSED  DUTIES,  PERSONAL.  [Part  !!► 

owned  by  conterminous  proprietors,  the  rule  for  distribution  of 
accretions  is  to  extend  the  side  lines  of  each  owner  to  the  nearest 
river  bank,  giving  to  each  the  alluvial  deposits  in  front  of  his  own 
land.'  If  one  of  conterminous  proprietors  of  land  bounded  on  a. 
cove,  by  filling  in,  makes  new  land  extending  into  the  cove  oppo- 
site the  premises  of  both,  the  rule  used  in  division  of  alluvion  may  be- 
applied  in  dividing  the  new-made  land  between  them."  If  a  river 
suddenly  leaves  its  bed,  the  title  to  the  dry  soil  is  unchanged.' 

Land  formed  by  accretion  on  a  fractional  quarter-section  is  a 
part  thereof,  and  passes  by  a  deed  conveying  the  fractional  quar- 
ter by  its  number,"  The  owner  of  an  island  between  two  chan- 
nels of  a  river,  which,  by  a  change  in  the  course  of  the  channels, 
has  gradually  pushed  up  stream  as  the  result  of  natural  accretions,, 
so  as  to  cover  the  whole  front  of  the  lands  of  a  riparian  owner, 
whicli  formerly  extended  higher  up  than  the  island,  where  the 
channels  continue  to  be  distinct,  although  the  one  between  the 
lands  mentioned  has  become  unnavigable  except  at  high  tide,  is 
entitled  to  the  accretions,  under  Cal.  Civ.  Code,  sec.  1014,  which 
is  merel}'  declaratory  of  the  law  as  it  has  always  been." 

The  title  of  a  riparian  owner  on  a  non-navigable  stream  to  ac- 
cretions is  not  limited  by  the  middle  line  of  the  stream.'  He 
takes  whatever  front  upon  the  river  its  change  of  bed  gives  him, 
and  by  lines  that  run  from  the  termini  of  his  upland  lines  at  right 
angles  to  the  centre  line  of  the  stream.' 

Land  formed  in  a  river  is  the  property  of  the  owner  of  the 
river  bed.*  A  person  owning  land  bounded  by  a  stream  which 
changes  course  gradually  holds  the  same  boundary,  including  the- 
accumulated  soil.*  Alluvion  passes  to  the  grantee  of  shore  land, 
without  express  mention.'"  But  it  is  not  applicable  where  the  soil 
of  another  is  laid  bare  by  the  gradual  subsidence  of  a  mill-pond 
caused  by  the  decay  of  a  dam."     The  law  of  accretion  and  dere- 

^Hubbard  v.  Manwell,  60  Vt.  235,  6  New  Eng.  Rep.  773. 

^Watson  V.  Eorne,  64  N.  H.  416,  6  New  Eng.  Rep.  386. 

^Lynch  v.  Allen,  4  Dev.  &  B.  L.  62,  32  Am.  Dec.  671;    Woodbury   v.  Shoi%. 

17  Vt.  387. 
*Tappendorff\.  Downing,  76  Cal.  169. 
^Fillmore  v.  Jennings,  78  Cal.  634. 
6 '  Welles  V.  Bailey,  55  Conn.  292,  4  New  Eng.  Rep.  841. 
» » ^''Linthicum  v.  Goan,  64  Md.  439,  2  Cent.  Rep.  633. 
^'^Eddy  V.  *S'^.  Mars,  53  Vt.  462;  Gould,  "Waters,  286. 


Chap.  XYIII.]       ALLUVION,  ACCRETION    AND    DERELICTION.  30l> 

liction  is  the  same  in  the  case  of  botli  navigable  and  non-naviga- 
ble rivers.'  There  is  no  distinction  in  this  respect  between  soil 
gained  by  accretions  and  that  uncovered  by  dereliction.'  Owner- 
ship of  marine  or  alluvial  soil  may  be  acquired  by  accretion.' 
If,  in  consequence  of  any  such  construction,  land  is  made  by  ac- 
cretion, such  accretion  belongs  to  the  owner  of  the  land  to  which 
it  attaches,  and  not  to  the  United  States.* 

Past  accretions  belonged  to  the  then  owner,  and  anyone  claim- 
ing title  to  them  must  show  a  deed  of  them,  the  same  as  of  any 
other  land,*  All  grants  of  land  bounded,  by  fresh-water  rivers, 
where  the  expressions  designating  the  water-line  are  general,  con- 
fer the  proprietorship  and  entitle  the  owner  to  the  accretion.' 
Where  defendant  has  been  in  possession  under  title,  for  more  than 
twenty  years,  of  the  land  to  which  the  accretions  sued  for  are  at- 
tached and  belong,  he  owns  the  same.''  Dereliction  differs  from 
alluvion  in  this:  that  the  former  term  applies  to  land  made  by  the 
withdrawal  of  the  waters  by  which  it  was  covered.  The  with- 
drawal of  the  waters  must  be  slow,  gradual  and  imperceptible. 
The  same  general  rules  apply  to  it  as  to  alluvion.*  If  the  waters 
leave  the  shore  suddenly,  and  land  is  uncovered  in  any  large  quan- 
tities, then  it  belongs  to  the  public' 

The  doctrine  as  to  alluvion  is  equally  applicable  to  tide-waters 
and  to  non-tidal  rivers  and  lakes.'"     Before  there  can  be  a  right 

^Welles  V.  Bailey,  55  Conn.  293,  4 New  Eng.  Rep.  841. 

"^Handly  v.  Anthony,  18  U.  S.  5  Wheat.  380,  5  L.  ed.  113;  Boorman   v.  Sun- 
nuc?ts,  42  Wis.  233,  244;  Gould,  Waters.  284. 

^Mulry  V.  Norton,  100  K  Y.  424,  1  Cent.  Rep.  748. 

n  Ops.  Atty-Gen.  314;  Doe  v.  Beebe,  54  U.  S.  13  How.  25.  14  L.  ed.  35. 

''Jones  V.  Johnston,  59  U.  S.  18  Flow.  150,  15  L.  ed.  320. 

^Jones  V.  Soulard,  65  U.  S.  24  How.  41,  16  L.  ed.  604. 

iSaulet  V.  Shepherd,  71  U.  S.  4  Wall.  502.  18  L.    ed.  442;    Watkins  v.  Uol- 
man,  41  U.  S.  16  Pet.  25,  10  L.  ed.  873. 

^Murry  v.  Sermon,  1  Hawks,  56;  Warren  v.  Chambers,  25  Ark.  120,  4  Am. 
Rep.  23;  Boorman  v.  Sunnvchs,  42  Wis.  235. 

•Britton,  title  Purchase, A^',  Abbot  of  Ramsey's  Case,  Dyer,  326  (b);  Woodward 
V.  Fox,  2  Vent.  188;  Schultes,  Aq.  Rights,  137. 

^^Foster  v.  Wright,  L.  R.  4  0.  P.  Div.  438;  Ford  v.  Lacy,  7  Hurl.  &  N.  151; 
Hale,  De  Jure  Maris,  chap.  1;  Barney  v.  Keokuk,  94  U.  S.  324,  24  L.  ed. 
224;  Banks  v.  Ogden,  69  U.  S.  2  Wall.  57,  17  L.  ed.  818;  St.  Clair  County 
V.  Lovinf/sfon,  90  U.  S.  23  Wall.  46,  23  L.  ed.  59;  Lovingston  v.  St.  Clair 
County,  64  111.  56;  Granger  v.  Swart,  1  Woolw.  88;  Ridgway  v.  Ludlow, 
58  Ind.  248;  J5e?is<?n  V.  Morrow,  ^i  Mo.  345;  Warrenv.  Chambers,  25  Ark. 
120;  Murry  v.  Sermon,  1  Hawks,  56  ;  Oiraud  v.  Hughes,  1  Gill  &  J 
249;  Lamb  v.  Rickets,  11  Ohio,  311;  Niehaus  v.  Shepherd,  26  Ohio  St.  40. 


400  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

to  accretions,  tliere  must  be  an  estate  to  M'liich  the  accretions  can 
attach.'     A  proprietor  must  first  sliow  that  he  owns  the  shore." 

A  riparian  owner  on  a  navigable  river,  whose  land  is  washed 
away  bj  rapid  and  perceptible  stages,  and  lodged  in  the  river  op- 
posite, during  spring  floods,  is  entitled  to  so  much  of  the  land  as 
forms  in  the  river  by  this  process  between  the  adjacent  shore  and 
the  thread  of  the  river,  together  with  accumulations  caused  by  the 
gradual  washing  of  an  island  above  his  land,  and  which  fills  the 
space  between  the  shore  and  the  new  formation  in  the  river.' 

While  the  title  of  a  riparian  proprietor  is  liable  to  be  lost  bj 
erosion  or  submergence,  the  erosion  to  effect  that  result  must  be 
accompanied  bj  a  transportation  of  the  land  beyond  the  owner's 
boundary,  and  it  may  be  returned  by  accretion,  in  which  case  the 
ownership  temporarily  lost  may  be  regained."  If,  after  submer- 
gence, the  water  disappears  from  the  land,  either  by  its  gradual  re- 
tirement or  the  elevation  of  the  lands  by  natural  or  artificial  means, 
the  proprietorship  returns  to  the  original  owner.^  'No  lajDse  of 
time  during  which  the  submergence  has  continued  bars  the  right 
of  the  owner.*  And  so,  if  an  island  forms  upon  the  land  sub- 
merged, it  belongs  to  the  original  owner.'  A  riparian  proprietor, 
conveying  lands  adjacent  to  navigable  waters,  may  so  limit  his 
grant  as  to  reserve  to  himself  not  only  his  riparian  privileges  in 
the  waters,  but  also  subsequent  accretions  to  the  soil  formed  by 
the  operation  of  natural  causes.* 

The  whole  subject  w^as  fully  considered  in  England,  in  the  case 
of  Bex  V.  Zo)yI  Yarhorough,  in  the  King's  Bench,  3  Barn.  &  C. 
91  ;  S.  a,  in  the  House  of  Lords,  2  Bligh,  N.  K.  147,  1  Dow 
&  C.  178;  S.  (7.,  sub  nom.  Gifford  v.  Lord  Yarhorougli^  in  the 
House  of  Lords,  5  Bing.  168, — where  it  was  decided  in  effect  that 
in  cases  of  alternate  accretion  and  decretion,  the  riparian  proprie- 
tors had  movable  freeholds,  that  is,  moving  into  the  river  with 
the  soil  as  it  was  imperceptibly  formed,  and  then  again  receding, 
when  by  attrition  it  was  worn  away.  Lord  Yarborough  owned 
lands  immediately  adjoining  the  sea,  to  prevent  the  encroachment 

^SmiUt  V.  SJiepherd,  71  U.  S.  4  Wall.  503,  18  L.  ed.  442. 

Wates  V.  Illinois  Cent.  R.  Go.  66  U.  S.  1  Black,  204,  17  L.  ed.  158. 

mutz  V.  Seeger,  35  Fed.  Rep.  188. 

*  6 « fMulry  V.  Norton,  100  N.  Y.  424,  1  Cent.  Rep.  748. 

^Peoi^le  V,  Jones,  112  N.  Y.  598. 


Chap.  XVIII.]       ALLUVION,  ACCRETION    AND    DERELICTION.  40l 

of  which  upon  his  lands  he  built  sea  walls  on  two  sides.  The 
■ooze,  sand  and  soil  from  the  sea  were  gradually  deposited  outside 
of  and  against  these  walls,  until,  by  the  accretion,  some  450  acres 
of  land  were  made  in  a  short  time,  which  the  Crown  claimed 
against  him.  But  the  Court  of  King's  Bench  held,  and  the  decis- 
ion was  affirmed  by  the  House  of  Lords,  that,  the  land  being 
formed  by  the  gradual  and  imperceptible  action  of  the  sea.  Lord 
Yarborough,  and  not  the  Crown,  was  entitled  to  it.'  The  doctrine 
<jf  the  English  cases  is  that  accretion  is  an  addition  to  land  con- 
terminous with  the  water,  which  is  formed  so  slowly  that  its  pro"*- 
ress  cannot  be  perceived,  and  does  not  admit  of  the  view  that,  in 
order  to  be  accretion,  the  formation  must  be  one  not  discernible 
by  comparison  at  two  distinct  points  of  time. 

In  New  Orleans  v.  United  States,  35  U.  S.  10  Pet.  662,  9  L.  ed. 
-573,  the  accretion  was  140  feet  in  width,  formed  in  22  years.  In  St. 
Clair  County  v.  Lovingston,  90  U.  S.  23  Wall.  46,  23  L.  ed.  59, 
the  court  says:  "  In  the  light  of  the  authorities,  alluvion  maybe 
defined  as  an  addition  to  riparian  land,  gradually  and  impercepti- 
bly made  by  the  water  to  which  the  land  is  contiguous.  The  test 
as  to  what  is  gradual  and  imperceptible  in  the  sense  of  the  rule  is 
that,  though  the  witnesses  may  see  from  time  to  time  that  prog- 
ress has  been  made,  they  could  not  perceive  it  while  the  process 
was  going  on."* 

Where  by  long  continued  natural  accretion  of  gravel,  the  bed 
of  a  river,  and  consequently  the  flow  of  water,  have  become  per- 
manently altered,  a  riparian  owner  has  no  right,  by  removing  the 
accretion,  to  restore  the  flow  of  the  water  to  its  former  state  as  to 
velocity  and  direction. ' 

'See  also  Be  Hull  &  S.  B.  Co.  5  Mees.  &  W.  327;  Scratton  v.  Bro\m,  4 
Barn.  &  C.  485. 

'^To  the  same  effect  are  Jones  v.  Johnston,  59  U.  S.  18  How.  150,  15  L.  ed. 
320;  Jones  v.  Soulard,  65  U.  S.  24  How.  41,  16  L.  ed.  604;  St.  Louis  Pub- 
lic Schools  V.  Bisley,  Tt  U.  S.  10  Wall.  91,  19  L.  ed.  850;  Ualsey  v.  Mc- 
Gormick,  18  TST.  Y.  147;  Miilry  v.  Norton,  100  N.  Y.  424,  1  Cent.  Rep. 
748;  Hopkins  Academy  v.  Dickinson,  9  Cusb.  544;  Camden  &  A.  Land 
Co.  V.  Lippincott,  45  N.  J.  L.  405. 

^  Withers  v.  Purchase,  60  L.  T,  N.  S,  819,  40  Alb.  L.  J.  214. 
26 


CHAPTER  XIX. 

FLOATABLE  AND  NAVIGABLE  STREAMS-USES  AND  ABUSES. 

Sec.  45.  Floatalle  and  Private  Streams. — Title  of  Riparian  Owner^ 
— Beasonable  Use. — Dams  and  Mills. — Log  Driving. 

Sec.  46.  Easements  in  Rivers,  Streams  and  Ponds  Acquired  ly 
Grant. — Parol  License. 

Sec.  47.  Where  It  is  Uncertain  ivliether  the  Grant  Limits  the  Quan- 
tity of  Water  or  the  Class  of  Machinery,  the  Limit  will  le  Applied 
to  the  Water. 

Sec.  48.  Easements  in  Flowing  Water  Acquired  iy  Prescription, 

Section  45. — Floatable  and  Private  Streams. — Title 
of  Riparian  Owner.— Reasonable  Use.— Dams 
and  Mills.— Log  Driving. 

The  third  class  of  navigable  streams  is  made  up  of  those  streama 
which,  though  not  navigable  for  boats  or  lighters,  are  floataUe  or 
capable  of  valuable  use  in  bearing  logs,  or  the  products  of  mines, 
forests  and  tillage,  to  mills  or  markets.  In  fact,  the  public 
right  to  the  use  of  rivers  for  transportation  purposes  exists  upon 
all  streams  which,  in  their  natural  state,  have  capacity  for  floatage,, 
irrespective  of  custom  or  the  fact  of  actual  public  use,  or  the  ex- 
tent of  such  use.*  To  constitute  a  navigable  water,  it  is  immate- 
rial whether  a  current  flows  through  it  or  not.  Water  may  be 
navigable  without  a  current,  and  it  may  not  be  although  it  has  a 
current;  nor  is  a  current  essential  to  the  existence  of  riparian 
rights." 

When  a  stream  is  in  its  nature  capable  of  being  used  for  the 
purposes  of  commerce,  for  the  floating  of  vessels,  boats,  rafts  or 
logs,  then  the  easement  exists,  leaving  to  the  owners  of  the  bed  all 
other  modes  of  use  not  inconsistent  with  it.*     The  right  of  the 

^Moore  v.  Sanhorne,  2  Mich.  591;  Broion  v.  CMdbourne,  31  Me.  9,  50  Am. 

Dec.  641;  Davis  v.  Winslow,  51  Me.  264,  81  Am,  Dec.  584. 
^Turner  v.  Holland,  65  Mich.  453,  8  West.  Rep.  796. 
Gutter  V.  Gallagher  {Or.  .Tune  18,  1890)  24  Pac.  Rep.  250;  Harold  v.  Jones,  86 

Ala.  274,  3  L.  R.  A.  406;  Weatherby  v.  Meiklejohn,  56  Wis.  73;  Haines  v. 


Chap.  XIX.]        FLOATABLE    AND    TKIVATE    STREAMS.  403 

public  to  use  private  streams  for  rafting  and  floating  logs  as  far  as 
necessary  for  public  accommodation  is  recognized.' 

A  watercourse  will  be  held  to  be  a  navigable  stream  when  its 
natural  state  is  such  as  to  alford  a  channel  for  useful  commerce ; 
its  condition  is  not  affected  by  the  formation  of  natural  barriers^ 
sand  bars  or  riffles.^  So  a  stream  of  sufficient  capacity  and  vol- 
ume of  water  to  float  to  market  the  products  of  the  country,  of» 
whatever  kind  or  however  floated,  will  answer  the  latter  conditions 
of  navigability ;  and  it  is  not  essential  that  the  stream  should  be 
"continuously  in  a  state  suited  to  the  flomtage.' 

Where  the  public  are  authorized  to  use  the  channel  of  the  stream 
for  floating  logs,  they  are  also  authorized  to  use  a  new  channel  con- 
structed by  the  riparian  owner  to  divert  the  stream/  Or  they 
may  pass  their  logs  through  a  new  channel  created  by  a  break  in 
the  dam.*  The  riparian  owner  on  streams  which  are  merely  float- 
able is  bound  not  to  obstruct  their  reasonable  use  for  that  purpose.* 

To  show  that  a  stream  is  navigable  throughout  the  year,  it  is 
sufficient  to  show  adaptability  for  the  purposes  of  navigation  or 
valuable  floatage  of  the  products  of  the  country  at  the  usual  stage 
of  water,  without  reference  to  the  past,  present  or  prospective  uses 
of  the  stream  for  these  purposes.''  Proof  that  a  river  was  suffi- 
cient for  the  floatage  of  logs  and  flatboats  during  the  winter  sea- 
son, and  that  certain  particular  logs  have  been  floated  thereon,  is 

Welch,  14  Or.  319;  Rhodes  v.  Otis,  33  Ala.  592;  Sullivan  v.  Spotswood,  83 
Ala.  167;  The  Daniel  Ball,  77  U.  S.  10  Wall.  557,  19  L.  ed.  999;  Ellis  v. 
Carey,  30  Ala.  725;  Lexois  v.  Coffee  County,  77  Ala.  190;  The  Montcllo,  87 
U.  S.  20  Wall.  430,  23  L.  ed.  391;  Stoughton  v.  iJaArer,  4  Mass.  522;  Vonght 
V.  Winch,  2  Barn.  &  Aid.  662;  Woolrych,  Waters,  270;  Brown  v.  Chad- 
bourne,  31  Me.  9,  21.  See  also  Carter  v.  Thurston,  58  N.  H.  104,  106; 
Tyirell  v.  Lockhart,  3  Blackf.  136;  Bruhaker  v.  Paul,  7  Dana,  428;  Sl<ite  v. 
Thompson,  2  Strobli.  L.  12;  Hubbard  v.  Bell,  54  111.  110;  Peters  v.  New 
Orleans,  M.  &  C.  R.  Co.  56  Ala.  528;  Gould,  Waters,  p.  114. 

^Pabnerv.  Mulligaji,  3  Caines,  315;  Shaw  v.  Crawford,  10  Johns.  237;  Ex 
parte  Jennings,  6  Cow.  518;  Browne  v.  Scofield,  8  Barb.  239;  Morgan  v. 
King,  18  Barb.  282,  35  N.  Y.  459;  Broicn  v.  Chadbourne,  31  Me.  9;  Moore 
V.  Sanborne,  2  Mich.  519;  Pierrepont  v.  Loveless,  72  N.  Y.  211. 

^Goodwill  V.  Bossier  Parish  Police  Jury,  38  La.  Ann,  752. 

^Buckiv.  Cone,  25  Fla.  1;  Mitter  v.  Gallagher  (Or.  June  18,  1890)  24  Pac. 
Rep.  250. 

*Dwinel  v.  Barnard,  28  Me.  554;  Dwinel  v.  Veazie,  44  Me.  107. 

^Whisler  v.  Wilkinson,  22  Wis.  572;  A.  C.  Conn.  Co.  v.  LitlU  S.  L.  Mfg.  Co. 
74  Wis.  652. 

^Morgan  v.  King,  18  Barb.  277;   Collins  v.  Iloward,  65  N.  II. . 

">  Olive  V.  Stale,  86  Ala.  88,  4  L.  K.  A.  33. 


404:  IMPOSED    DUTIES,  PERSONAL.  [Part  II. 

not  sufficient  to  authorize  a  declaration  by  the  court,  as  a  matter 
of  law,  that  the  stream  is  a  public  highway,  but  presents  a  ques- 
tion of  fact  for  the  jury.'  Evidence  not  sufficient  to  authorize 
the  court  to  declare  the  character  of  a  stream  as  a  matter  of  law 
should  be  submitted  to  the  jury  for  their  consideration  in  deter- 
mining the  character  of  the  river  as  a  matter  of  fact.^ 

In  Pennsylvania  and  Tennessee,  where  the  principal  fresh-water 
rivers  are  held  to  be  pul)lic  property  like  tide-waters,  fresh  streams 
which  are  merely  floatable  and  have  been  included  in  the  warrants 
and  surveys  of  the  land  difice  as  part  of  the  public  lands  belong, 
as  in  most  States,  to  the  riparian  owners  usque  ad  filum  aqum^ 
subject  to  the  public  right  of  passage.*  The  riparian  owner  owns 
to  the  thread  of  the  stream ;  and  if  he  owns  upon  both  sides  he 
owns  the  land  under  the  stream  ;  he  owns  the  rocks  in  the  bed  of 
the  stream  ;  he  owns  everything  that  is  attached  to  the  realty  ;  and 
no  man  can  remove  a  rock  from  a  floatable  stream  except  by  per- 
mission of  the  riparian  owner,  or  by  permission  from  public  grant, 
by  reason  of  original  authority,  and  then  upon  provision  being 
made  for  any  damages  or  compensation  awarded  to  the  riparian 
owner  for  the  taking  of  his  property.*  But  in  North  Carolina 
the  riparian  owner  of  land  on  the  bank  of  an  unnavigable  stream 
has  no  title  ad  filum  aquce,  if  the  State  has  granted  the  bed  of  the 
stream  to  another.^ 

Streams  which  are  not  floatable,  or  cannot  in  tlieir  natural  state 
be  used  for  the  carriage  of  boats,  rafts  or  other  property,  are  abso- 
lutely private.'     If  the  stream  is  so  small  and  shallow  that  logs 

Wlive  V.  State,  86  Ala.  88,  4  L.  R.  A.  33. 

^Peters  v.  New  Orleans,  M.  &  C.  R.  Co.  56  Ala.  528;  Olive  v.  State,  86  Ala. 

88,  4  L.  R.  A.  33. 
'Coovert  v.   0' Conner,  8  Watts,  477;  Barclay  R.  &■  Coal  Co.   v.  Ingham,  36 

Pa.  194;  Stuart  ^r.  Clark,  3  Swan,  9;  Sigler  v.  State,  "7  Baxt.  498;  Hodges 

V.  Williams,  95  N.  C.  331;  Fulmer  v.  Williams,  122  Pa.  191, 1  L.  R  A.  603. 
*8tratton  v.  Currier,  81  Me.  497,  3  L.  R.  A.  809. 
^Hodges  v.  Williams,  95  N.  C.  331. 
*Berri/  v.  Carle,  3  Me.  269;  Spring  v.  Russell,  7  Me.  273;  Wadsworth  v.  Smith, 

11  Me.  278;  Dwinel  v.  Barnard,  28  Me.  554;  Brown  v.  CJiadbourne,  31  Me. 

9;  Treat  v.  Lord,  42  Me.  552;  Knox  v.  Chaloner,  42  Me.  150;  Brown  v. 

Black,  43  Me.  443;  Dwinel  v.  Veazie,  44  Me.  167;  Veazie  v.  Dwinel,  50  Me. 

479;  Oerrish  v.  Brown,  51  Me.  256;  Davis  v.  Winslow,  51  Me.  264;  Lancey 

V.  Clifford,  54  Me.  487;  Holden  v.  Robinson  Mfg.  Co.  65  Me.  215;  Lawler 

V.  Baring  Boom  Co.  56  Me.  443;  Hooper  v.  Hobson,  57  Me.  273;  Gould, 

Waters,  p.  194;  Pope  v.  Kinman,  54  Cal.  3. 


Chap.  XIX.]        FLOATABLE    AND    PRIVATE   STREAMS,  405 

cannot  be  driven  in  it  without  traveling  upon  the  banks,  it  is  not 
open  to  the  pubKc  for  passage.* 

The  requisite  vohime  of  water  only  occasionally,  as  the  result  of 
freshets,  and  for  brief  periods,  is  not  sufficient  to  make  a  fresh- 
water stream  navigable  and  prevent  it  from  being  private  prop- 
erty." The  character  of  the  smaller  fresh  streams,  which  are 
capable  of  passage  or  of  floatage  at  certain  seasons,  is  a  ques- 
tion of  fact.'  If  not  declared  public  highways  by  the  Legisla- 
ture, or  excluded  from  government  surveys,  and  not  valuable 
for  public  travel  and  transportation,  they  are  exclusively  private 
property." 

Whether  a  brook  is  a  public  highway  depends  upon  its  capacity, 
extent  and  importance."  The  fact  that  the  banks  are  commonly 
used  for  the  purpose  of  towing  or  propelling  what  is  floating,  is 
evidence  merely  of  want  of  capacity  for  public  use."     The  ques- 

^Mori-v^on  v.  Coleman,  87  Ala.  655,  5  L.  R.  A.  384;  Olson  v.  Merrill,  42 
"Wis.  203;  Burroughs  v.  Whitwam,  59  Mich.  279;  Munson  v.  Uungerford, 
6  Barb.  265;  Curtis  v.  Keesler,  14  Barb.  511;  Guston  v.  Mace,  33  W.  Va. 
14,  5  L.  R.  A.  392;  Varick  v.  Smith,  9  Paige,  547,  4  N.  Y.  Ch.  L.  ed. 
811;  Brotcne  v.  Scofidd,  8  Barb.  289;  Palmer  v.  Mulligan,  3  Caines,  307; 
Ex  parte  Jennings,  6  Cow.  518;  Pierrepont  v.  Loveless,  72  N.  Y.  211,  216; 
Slater  v.  Fox,  5  Hun,  544;  Moorev.Sanhorne,  2  Mich.  519;  Lorman\. 
Benson,  8  Mich.  18;  Ryan  v.  Brown,  18  Mich.  196;  Middleton  v.  Flat 
River  Booming  Co.  27  Mich.  533;  The  City  of  Erie  v.  Canfield,  27  Mich. 
479;  Thunder  Bay  River  Booming  Co.  v.  Speedily,  31  Midi.  336,  345;  Atiy- 
Oen.  V.  Evart  Booming  Co.  34  Mich.  462;  Wood  v.  Rice,  24  Mich.  423; 
Scott  V.  Willson,  3  N.  H.  321;  Barron  v.  Davis,  4  N.  H.  338;  State  v.  Gil- 
manton,  14  N.  H.  467,  479;  Tliompson  v.  Androscoggin  River  Imp.  Co.  54 
N.  H.  545,  58  N.  H.  108:  Carter  v.  Thurston,  58  N.  H.  104,  107;  Whusler 
V.  Wilkinson,  22  Wis.  572;  Wisconsin  River  Imp.  Co.  v.  Lyons,  30  Wis.  61, 
66;  Sellers  v.  Union  Lumbering  Co.  39  Wis.  525;  Birclay  R.  &  Goal  Co. 
V.  Ingham,,  36  Pa.  194;  Llickok  v.  Hine,  23  Ohio  St.  523;  liVeise  v.  Smith, 
3  Or.  445;  Felger  v.  Robinson,  3  Or.  455;  Nutter  v.  Gallagher  (Or.  June, 
1890)  24  Pac.  Rep.  250;  Blood  v.  Nashua  <&  L.  R.  Corp.  2  Graj',  137; 
Roice  V.  Granite  Bridge  Corp.  21  Pick.  344;  Atty-Gen.  v.  Woods,  108 
Mass.  436;  Neaderhouser  v.  State,  28  Ind.  257;  Exson  v.  McMaster,  1  Kerr 
(N.  B.)  501;  Rowe  v.  Titus,  1  Allen  (N.  B.)  326;  Boissonnault  v.  Oliva, 
Stuart  (Low.  Can.)  564;  Hayward  v.  Knapp,  23  Minn.  430;  Lamprey  v. 
Nelson,  24  Minn.  304:  Com.  v.  Charlestown,  1  Pick.  180:  Irwin  v.  Brown 
(Tenn.  Oct.  5,  1889)  12  S.  W.  Rep.  340;  Charlestown  v.  Middlesex  County, 
3  Met.  202;  Gould,  Waters,  p.  195. 

"^Morrison  v.  Coleman,  87  Ala.  655,  5  L.  R.  A.  384. 

^Rhodes  v.  Otis,  33  Ala.  578. 

*Ellis  V.  Carey,  30  Ala.  725;  Morrison  v.  Coleman,  87  Ala.  655,  5  L.  R.  A. 
384. 

^Haines  v.  Welch,  14  Or.  319, 

« Gould,  Waters,  p.  195. 


I 


406  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

tion  whether  it  is  a  highway  is  held  to  be  a  question  of  law  for  the 
court,  after  the  facts  are  determined  by  a  juiy.' 

A  stream  is  navigable  which  has  capacity  to  float  rafts  of  lum- 
ber, but  not  streams  which  only  float  single  logs  or  planks."  The 
doctrine  that  a  stream  is  navigable  if  of  sufScient  capacity  to  float 
logs  does  not  include  streams  of  only  a  few  miles  in  length,  and 
whose  capacity  is  only  temporary,  and  is  derived  from  the  melting 
of  snow  on  the  mountains,  and  are  not  then  floatable  without  a 
large  amount  of  human  help.'  In  some  of  the  States  a  stream 
which  is  not  of  sufficient  depth  naturally  for  valuable  floatage, 
such  as  rafts,  flatboats  and  small  vessels  of  lighter  draft  than  ordi- 
nary, is  not  navigable." 

In  Rhodes  v.  Otis.,  33  Ala.  578,  the  question  was  very  elabo- 
rately considered,  Walker,  Ch.  J.,  delivering  the  opinion  of  the 
court.  After  collating  many  authorities,  the  summing  up  is  that: 
^'It  does  not  appear  that  the  public  generally,  or  any  large  num- 
ber of  persons,  will  ever  use  the  stream  for  floatage.  Indeed,  the 
short  distance  to  which  the  stream  can  be  used  [six  or  seven  miles] 
affords  a  strong  argument  that  no  large  number  of  persons  will 
probably  ever  use  it  for  floating  timber.  The  stream,  even  below 
the  mouth  of  Tallahatta  Creek,  can  only  be  used  for  floatage  in 
freshets  from  head  water,  or  from  back  water  from  the  Tombeck- 
hee  River.  In  case  of  freshets  from  head  water  it  can  be  used  for 
floating  rafts  only  for  a  very  short  time,  because  the  creek,  being 
a  very  short  one,  runs  down  very  soon.  .  .  .  The  highest  estimate 
of  the  aggregate  of  the  brief  periods  when  it  might  be  used  for 
the  short  distance  for  floating  rafts  and  logs  on  account  of  freshets 
and  back  water  is  three  months.  The  creek  is  not  shown  to  have 
been  excepted  from  the  government  surveys.  Upon  such  evidence 
it  cannot  be  said  that  Bashi  Creek  is  a  navigable  stream."  * 

In  the  case  of  The  Daniel  Ball,  77  U.  S.  10  Wall.  557,  19  L. 

^ Ellis  V.  Carey,  30  Ala.  725;  Rhodes  v.  Otis,  33  Ala.  578;  Peters  v.  New  Or- 
leans, M.  &  G.  R.  Co.  56  Ala.  528;  State  v.  'Bell,  5  Port.  (Ala.)  379;  Treat 
V.  Lord,  42  Me.  552;  Bryant  v.  Glidden,  36  Me.  36.  See  Wisconsin  River 
Log  Driv.  Asso.  v.  Comx,tock  Lumber  Co.  72  Wis,  464,  1  L.  R.  A.  717. 

^American  River  Water  Co.  v.  Amsden,  6  Cal.  443. 

^Haines  v.  Hall,  17  Or.  165,  3  L.  R.  A.  609,  and  note. 

^Irwin  V.  Brown  (Tenn.  Oct.  5,  1889)  12  S.  W.  Rep.  340. 

«See  Peters  v.  Mw  Orleans,  M.  &  G.  R.  Go.  56  Ala.  528;  Walker  v.  Allen,  72 
Ala.  456;  SulUtan  v.  S2)otswood,  82  Ala.  163. 


Chap.  XIX.]        FLOATABLE    AND    TKIVATE    STKEAMS.  407 

ed.  999,  speaking  of  streams  above  tide-water,  the  court  said :  "A 
different  test  must  therefore  be  applied  to  determine  the  naviga- 
bility of  rivers,  and  that  is  found  in  their  navigable  capacity. 
Those  rivers  must  be  regarded  as  public  navigable  rivers  in  law, 
which  are  navigable  in  fact.  And  they  are  navigable  in  fact  when 
they  are  used,  or  are  susceptible  of  being  used,  in  their  ordinary 
condition,  as  highways  for  commerce,  over  which  trade  and  travel 
are  or  may  be  conducted  in  the  customary  modes  of  trade  and 
travel  on  water." 

In  Angell  on  "Watercourses,  §  535,  is  this  language :  "All  rivers 
above  the  flow  of  tide-water  are,  by  the  common  law,  prima  facie 
private ;  but  when  they  are  naturally  of  suthcient  depth  for  valu- 
able floatage,  the  public  have  an  easement  therein  for  the  purposes 
of  transportation  and  commercial  intercourse,  and  in  fact  they  are 
public  highways  by  water."  This  doctrine  is  amply  supported  by 
authority.* 

As  the  result  of  the  weight  of  authority,  a  fresh-water  stream 
above  tide-water  is  navigable,  and  a  public  highway,  when,  and 
only  when,  it  is  susceptible  of  being  used,  in  ordinar}^  condition, 
for  a  highway  of  commerce,  over  which  there  may  be  trade,  travel, 
transportation  or  valuable  floatage.  But  where  a  person  desiring 
to  open  a  way  of  navigation  to  a  certain  point  on  a  navigable  tide 
slough,  situated  upon  the  land  of  another  Avhich  adjoined  his  prem- 
ises, cleared  away  logs  and  brush  from  a  gulch  through  which 
flowed  a  small  mountain  stream,  deepened  the  same  and  cut  a 
channel  therefrom  through  the  intervening  land  of  the  other  to 
such  a  point  of  navigation,  thereby  opening  a  watercourse  between 
his  premises  and  said  point,  by  means  of  which  he  was  enabled  to 
float  logs  and  small  boats  thereon  at  extreme  high  tides,  which 
occur  but  a  few  days  during  the  year;  and  it  appearing  that  the 
communication  so  established  was  merely  for  the  use  and  benefit 
of  himself  and  those  who  might  succeed  him  in  the  ownership  of 
his  premises, —  such  watercourse  did  not  constitute  a  navigable 
stream,  in  the  sense  and  meaning  of  the  term  as  legally  used.'' 

It  is  not  to  be  understood  that  to  be  a  navigable  stream  or  pub- 
lic highway  it  must  be  susceptible  of  the  enumerated  uses  for  the 

^Morgan  V.  King,  35  N.  Y.  454;  Leiois  v.  Coffee  County,  77  Ala.  190;  Olice 

V.  State.  86  Ala.  88,  4  L.  R.  A.  33. 
^Nutter  V.  QallagUr  (Or.  June  18,  1890)  24  Pac.  Rep.  250. 


408  IMPOSED   DUTIES,  PERSONAL.  [Part   II. 

entire  year.  That  a  river  is  sometimes  imnavigable  cannot  affect 
its  navigability  at  other  times,'  Most  inland  streams  contain  a 
greater  volume  of  water  in  winter  than  in  summer.  The  precise 
rule  is  that  for  a  season,  or  considerable  part  of  the  year,  it  must 
contain  that  depth  of  water  which  fits  it  for  such  transportation. 
It  excludes  all  those  streams  which  have  the  I'equisite  volume  of 
water  only  occasionally,  as  the  result  of  freshets,  and  for  brief 
periods,  as  unnavigable  and  private  property." 

If  a  fresh-water  stream  is  capable  of  serving  an  important  pub- 
lic use  as  a  channel  of  commerce,  it  should  be  considered  public ; 
if  only  a  brook,  although  it  may  serve  to  float  down  sawlogs  for  a 
few  days  during  a  freshet,  it  is  not  therefore  a  public  highway. 
Whether  it  is  the  one  or  the  other  depends  upon  its  capacity,  ex- 
tent and  importance.*  But  a  private  unnavigable  brook  which 
flows  into  a  public  navigable  river,  and  is  floatable  in  times  of 
high  water,  becomes  a  public  thoroughfare  by  being  publicly  used 
without  objection  for  twenty  years  as  an  inlet  for  rafts.* 

A  non-navigable  inland  lake  is  the  subject  of  private  ownership; 
and  where  it  is  so  owned,  neither  the  public,  nor  an  owner  of  ad- 
jacent lands  whose  title  extends  only  to  the  margin  thereof,  have 
a  right  to  boat  upon,  or  take  fish  from,  its  waters.' 

The  very  definition  of  the  third  class  of  navigable  streams  shows 
that  these  streams  would  not  be  included  in  the  common-law  defi- 
nition of  a  navigable  stream, — that  is,  one  in  which  the  tide  ebbs 
and  flows, — nor  could  it  come  within  the  civil-law  definition  of  a 
navigable  stream,  which  is  capable  of  being  navigated  by  boats  or 
lighters,  and  on  which  commerce  may  be  carried  on.  These  navi- 
gable streams  of  the  third  class  are  generally  called  floatable 
streams ;  and  though  the  public  has  a  right  to  use  them  as  a  public 
highway  by  floating  logs  and  other  products  of  forest,  mines  and 
tillao'C  down  these  streams  to  mills  and  market,  yet  the  riparian 

^Nelson  v.  Leland,  63  U.  S.  23  How.  48,  16  L.  ed.  269. 

^Morrison  v.  Coleman,  87  Ala.  655,  5  L.  R.  A.  384. 

^Haines  \.  Welch,  14  Or.  319;  Lawton  v.  Comer,  40  Fed.  Rep.  480,  7  L,  R. 

A.  55. 
*Stump  V.  McNairy,  5  Humph.  363.     The  only  decisions  tending  to  limit 

this  right  of  floatage  are  Hubbard  v.  Bell,  54  III.  110;  Thunder  Day  River 

Booming  Co.  v.  Speechly,  31  Mich.  336,  343,  and  American  River  Water  Co, 

V.  Amsden,  6  Gal.  443. 
^Lembeck  v.  Nye,  47  Ohio  St.  — ,  8  L.  R.  A.  578. 


Chap.  XIX.]        FLOATABLE    AND    PIllVATK    STKEAMS.  iUi) 

owners  along  such  streams  own  tlie  bed  of  them  as  well  as  their 
banks,  so  differing  in  some  States  from  other  navigable  streams. 
As  respects  the  right  of  a  land  owner  to  such  streams,  it  is  to  be 
observed  that,  wliile  he  has  a  property  in  the  streams,  he  has  no 
property  in  the  water  itself,  aside  from  that  which  is  necessary  for 
the  gratification  of  his  natural  or  ordinary  wants. 

It  is  a  well-recognized  rule  that  a  riparian  proprietor  m?ij,ju?'e 
naiurcB,  divert  water  from  a  stream  for  domestic  purposes  andfoi* 
the  irrigation  of  his  land ;  but  to  what  extent  he  may  do  the  lat- 
ter in  any  particular  case  depends  upon  whether  it  is  reasonable, 
having  due  regard  to  the  condition  and  circumstances  of  other 
proprietors  on  the  stream.  He  should  not  so  divert  it  as  to  de- 
stroy or  materially  diminish  or  impair  the  application  of  the  water 
by  other  proprietors.'  He  must  allow  it  to  pass  on  to  the  inferior 
heritors.'' 

All  the  rest  of  the  water  is  ^'■piiblici  juris i''^  aqua  ciirrit  et  debet 
currere  ut  solehat.  The  right  of  enjoying  this  flow  without  dis- 
turbance, interference  or  natural  diminution  by  any  other  pro- 
prietor is  natural  and  is  an  incident  of  property  in  the  land,  like 
the  right  the  proprietor  has  to  enjoy  the  land  itself  without  mo- 
lestation from  his  neighbors. 

A  riparian  proprietor  upon  a  natural  stream  should  use 
the  water  only  in  such  a  manner  that  every  riparian  proprietor 
further  down  the  stream  may  have  the  use  and  enjoyment  of  it 
substantially  according  to  its  natural  flow,  subject  to  such  inter- 
ruption as  is  necessary  and  unavoidable  by  the  reasonable  and 
proper  use  of  the  water  in  the  stream  above.' 

The  right  of  property  is  in  the  right  to  use  the  flow,  and  not  in 
the  specific  water.  Each  proprietor  may  make  any  use  of  the 
water  flowing  over  his  premises  which  does  not  essentially  or  ma- 
terially diminish  the  quantity,  corrupt  the  quality  or  detain  it  so 
as  to  deprive  other  proprietors  or  the  public  of  a  fair  and  reason- 

'Washb.  Easem.  240;  Miner  v.  Gilmour,  12  Moore,  P.  C.  155;  Elliot  v.  Fitch- 
burg  R.  Co.  10  Cush.  191;  Embrey  v.  Owen,  6  Exch.  353;  MemHf/er'» 
App.  109  Pa.  285,  1  Cent.  Rep.  424;  Gaitooodv.  New  York  Cent.  &  H. 
R.  R.  Co.  83  N.  Y.  404,  38  Am.  Rep.  452;  Radclif  v.  Brooklyn,  4  N.  Y. 
199;  Campbell  v.  Seaman,  63  N.  Y.  568. 

*Van  Hoesenv.  Coventry,  10  Barb.  521;  Swift  v.  Ooodrich,  70  Cal.  103. 

'Chandler  v.  JJowland,  7  Gray,  348;  Ware  v.  Allen,  140  Mass.  513.  1  New 
Eng.  Rep.  733.      See  Burk  v.  Simonson,  104  Ind.  173,  1  West.  Rep.  190. 


410  IMPOSED    DUTIES,  PERSONAL.  [Part  II. 

able  participation  in  its  benefits.'  This  rule  does  not  require 
that  there  shall  be  no  diminution,  abstraction  or  detention  by  the 
upper  or  lower  riparian  proprietor,  as  that  would  be  to  prevent  all 
reasonable  use  of  it.  The  upper  owner  cannot  vary  the  flow  of  the 
stream  so  as  to  cause  injury  to  the  lower  owner  by  any  alteration 
in  the  conformation  of  his  land,  as  by  removing  a  ledge  of  rock.* 

A  riparian  owner  may  grant  a  part  of  his  estate,  not  abutting 
on  the  stream,  and,  as  appurtenant  thereto,  a  right  to  draw  water 
from  the  stream  through  his  remaining  land ;  and  for  any  diver- 
sion of  the  natural  flow  of  the  stream  disturbing  such  right,  the 
grantee  may  maintain  an  action.'  But  he  cannot  authorize,  as 
against  a  lower  proprietor,  a  company  to  take  water  from  the 
stream,  to  be  conducted  to  a  distance  and  sold.^  The  riparian 
proprietor  on  a  non-tidal  navigable  stream  has  all  the  rights  of  a 
riparian  owner,  not  inconsistent  with  the  public  easement.' 

What  is'  a  reasonable  use  of  water  by  an  upper  riparian  owner 
is  a  question  of  fact  depending  upon  the  circumstances  of  each 
particular  case."  The  size  and  capacity  of  the  stream  are  to  be 
considered.^  The  diversion  of  the  water  of  a  stream  from  an- 
other's land  for  drainage  is  not  a  lawful  or  reasonable  use  of  the 
right  to  the  usufruct  of  the  water.*  The  accustomed  course  of  a 
natural  stream  which  a  riparian  owner  is  entitled  to  have  preserved 
is  the  natural  and  apparently  permanent  course  existing  when  the 
right  is  asserted  or  called  in  question.' 

Each  riparian  owner  is  entitled  to  a  reasonable  use  of  the  water 
for  domestic,  agricultural  and  manufacturing  purposes,  so  far  as 
it  is  reasonable,  conformable  to  the  usages  and  wants  of  the  com- 
munity, and  having  regard  to  the  progress  of  improvement  in  hy- 
draulic works,  and  not   inconsistent   with  a  like   reasonable  use 

^Ulbricht  V.  Eufaula  Water  Co.  86  Ala.  587;   Rindge  v.  Sargent,  64  N.  H. 

294,  4  New  Eng.  Rep.  523;  Race  v.  Ward.  30  Eng.  L.  &  Eq.  187;  Johnson 

V.  Jordan,  3  Met.  239,  37  Am.  Dec.  85;  Tyler  v.  Wilkinson,  'i:M-Ason,  397; 

Woodin  V.  Wentworth,  57  Mich.  278. 
^Grani  v.  Kuglar,  81  Ga.  637,  3  L.  R.  A.  606. 
^St.  Anthony  Falls  Water-Poioer  Go.  v.  Minneapolis,  41  Mian.  270. 
*  ^Heilbron  v.  Fowler  Switch  Canal  Co.  75  Cal.  426. 
^Heilbron  v.  76  Land  &  Water  Co.  80  Cal.  189. 
•>  Weissv.  Oregon  Iron  &  S.  Go.  13  Or.  496. 
^Pattisonv.  Richards,  22  Barb.  146. 
«  Withers  V.  Purchase,  60  L.  T.  N.  S.  819,  40  Alb.  L.  ,T.  214:  Slurr  v.  Beck, 

133  U.  S.  541,  33  L.  ed.  761. 


■Ohap.  XIX.]        FLOATABLE    AND    PRIVATE   STREAMS.  411 

by  tlie  other  proprietors  of  land  on  the  same  stream  above  and 
below.'  One  who  obtains  from  another,  who  has  the  right  to  con- 
duct through  a  natural  stream  waters  artificially  carried  to  it,  a 
license  to  remove  obstructions  in  the  stream  and  to  turn  water 
into  it  for  his  own  use,  is  not  entitled  to  take  out  more  water  than 
he  turns  into  it,  to  the  prejudice  of  the  rights  of  the  other  party, 
who  is  a  lower  owner.' 

A  riparian  proprietor  of  an  inland  non-navigable  lake  is  of  right 
•entitled  to  the  use  of  the  water  therein  for  domestic  and  agricul- 
tural purposes  connected  with  the  adjacent  land  upon  which  he 
may  reside  or  which  he  may  be  engaged  in  cultivating.' 

The  respective  rights  on  such  floatable  streams,  of  the  public 
:and  the  riparian  owners,  are  well  stated  in  Lancey  v.  Clifford^  54 
Me.  487,  92  Am.  Dec.  5G1.  Dickerson, ./.,  in  delivering  the  opin- 
ion, says  that  a  stream  which,  in  its  natural  condition,  is  capable 
of  being  used  for  floating  logs,  lumber  and  rafts,  is  subject  to 
public  use  as  a  highway,  though  it  be  private  property  and  not 
strictly  navigable.  The  right  of  the  public,  however,  must  be 
exercised  in  a  reasonable  manner,  since  such  persons  have  an  equal 
right  with  every  other  person  to  its  enjoyment,  and  the  enjoyment 
of  it  by  one  necessarily,  to  a  certain  extent,  interferes  with  its 
exercise  by  another.  What  constitutes  reasonable  use  by  the  pub- 
lic depends  upon  the  circumstances  of  each  particular  case,  as  the 
occasions  for  its  use  are  so  numerous  and  diverse  that  no  positive 
rule  can  be  laid  down  to  regulate  it  in  every  instance  with  any- 
thing like  exact  precision.  Any  stream  is  navigable  on  whose 
■waters  logs  or  timbers  can  be  floated  to  market,  and  they  are  pub- 
lic highways  for  that  purpose,  and  it  is  not  necessary  that  they  Ije 
navigable  the  whole  vear  to  constitute  them  such.  If  at  hit'li 
water  they  can  be  used  for  floating  timber,  then  they  are  naviga- 
ble, and  the  question  of  their  navigability  is  a  question  of  fact  to 
be  determined,  as  any  other  question  of  fact,  by  a  jury.  Any 
stream  in  which  logs  will  go  by  force  of  the  water  is  navigable. 

'  Zflbncht  V.  Eufaula  Water  Co.  86  Ala.  587;  Cai-y  v.  Daniels,  b  Met.  477. 

^ Paige  v.  Rjcky  Ford  Canal  &  Inig.  Co.  83  Cal.  86. 

^Lemheck  v.  Isye,  47  Ohio  St. ,  8  L.  R.  A.  578.      See  Dumont  v.  Kellogg, 

29  Mich.  425,  to  the  point  tliat  each  riparian  proprietor  is  allowed  a  rea- 
sonable use  of  the  water;  also  Dilling  v.  Murray,  6  Ind.  'i2Q;  ^'ewhall  v.  Ire- 
son,  8  Cush.  595,  54  Am.  Dec.  690. 


412  IMPOSED    DUTIES,  PERSONAL.  [Part  II, 

The  same  doctrine  is  asserted  in  Shaw  v.  Oswego  Iron  Go.^  10  Or, 
371.     JS'umerous  other  authorities  are  to  the  same  effect.* 

Tlie  various  purposes  for  which  such  a  highway  is  used  by  the- 
public,  wliether  for  transporting  merchandise,  rafting,  driving,, 
booming  logs  or  securing  them  at  the  mill,  if  necessary,  require  so 
much  space  as  tempoi'arily  to  obstruct  the  way  ;  but  if  parties  so 
conduct  themselves  in  their  business  as  to  discommode  others  as 
little  as  is  reasonably  practicable,  the  law  holds  them  harmless. 
If  the  rule  of  law  was  otherwise,  the  right  of  way  could  not  iu 
many  cases  be  available  for  any  useful  purpose.^ 

A  river  which  is  floatable  only  —  floatable  because  capable  of 
valuable  use  in  bearing  the  products  of  the  forests  to  markets  or 
mills — is  the  least  important  of  the  classes  of  streams  called  navi- 
gable. In  such  streams  the  public  rights  are  not  to  the  same  ex- 
tent superior  to  private  rights  as  in  rivers  capable  of  more  unre- 
stricted navigation.  If  a  stream  is  not  susceptible  of  valuable  use 
to  the  public  for  floatable  purposes  without  erections  for  raising 
the  head,  it  cannot  legally  be  deemed  a  public  stream,  even  though 
it  might  easily  be  converted  into  a  floatable  stream  by  artificial 
contrivances.'  The  log  driver  takes  the  waters  as  they  run,  and 
the  bed  over  which  they  flow,  as  nature  provides.  Nor  has  any 
person  a  right,  unless  upon  his  own  land,  or  under  legislative  grant, 
to  remove  natural  obstructions  from  the  bed  of  a  river  in  order  to- 
improve  its  navigation.  The  riparian  proprietor  owns  the  bed  of 
the  river  to  the  middle  of  the  stream,  and  he  owns  all  the  rocks  and 
natural  barriers  in  it.  He  owns  all  but  the  public  right  of  passage, 
but  this  right  does  not  include  any  right  to  meddle  with  the  rocks 
or  soil  in  the  bed  of  the  river.*  The  owner  may  maintain  trespass 
quare  dausum  for  an  unlawful  invasion  of  land  covered  by  water.^ 

^Collins  V.  Howard,  65  N.  H. ;  Gaston  v.  Mace,  33  W.  Va.  14,  5  L.  R.  A. 

393;  Brown  v.  Chadbourne,  31  Me.  9;  Olson  y.  Merrill,  43  Wis.  203;  Mor- 
gan V.  King,  35  N.  Y.  454,  30  Barb.  1;  Hickok  v.  Mine,  23  Ohio  St.  523; 
Whisler  v.  Wilkinson,  23  Wis.  573;  Sellers  v.  Union  Lumbering  Co.  39 
Wis.  525;  Holden  v.  Robinson  Mfg.  Co.  65  Me.  215;  Gerrish  v.  Brown,  51 
Me.  256. 

^Broion  v.  Chadbourne,  31  Me.  9,  50  Am.  Dec.  641;  Davis  v.  Winslow,  51 
Me.  264,  81  Am.  Dec.  573. 

^Wadsworth  v.  Smith,  11  Me.  278;  Brown  v.  Chadbourne,  31  Me.  9,  50  Am. 
Dec.  641;  Treat  v.  Lord,  43  Me.  553. 

*June  V.  Pureell,  36  Ohio  St.  396;  Ross  v.  Faust,  54  Ind.  471;  Watson  v.  Pe- 
ters, 26  Mich.  508;  Braxon  v.  Bressler,  64  111.  488. 

^■Morris  Canal  &  Bkg_.  Co.  v.  Jersey  City,  26  N.  J.  Eq.  294;  Walker  v.  Shep- 
drdson,  4  Wis.  495;  Moor  v.  Veazie,  31  Me.  360. 


Chap.   XIX.]        FLOATABLE    AND    PRIVATE    STREAMS.  413 

Ice  formed  upon  a  floatable  fresh-water  stream  is  the  property 
of  the  riparian  proprietors.' 

In  addition  to  his  ownership  the  structures  of  the  mill  owner 
are  legalized  and  protected  by  the  statutes  of  the  State.  For  the 
sake  of  the  gain  which  the  public  derive  through  the  use  of  his 
mills,  a  public  franchise  is  granted  him,  authorizing  him  to  build 
dams  and  erect  mills  and  to  raise  the  head  of  water  for  his  use, 
which  water  becomes  his  property,  and  one  who  coasts  waste  into 
his  pond  to  his  injury  is  liable  therefor.'  Unless  a  log  owner  is 
relieved  by  statute,  he  will  be  liable  if  he  unnecessarily  incumbers 
the  pond  of  a  mill  owner  with  his,  logs,  his  right  being  one  of  pas- 
sage, not  of  rest.^ 

The  owner  of  soil  over  which  a  floatable  stream,  which  is  not 
technically  navigable,  passes,  may  build  a  dam  across  it  and  erect 
a  mill  thereon,  provided  he  furnishes  convenient  and  suitable 
sluices  or  passageways  for  the  public  by  or  through  his  erections. 
In  this  way  both  rights  may  be  exercised  without  special  prejudice 
or  inconvenience.  To  give  either  absolute  prerogative,  would  be 
destructive  to  both.  The  rights,  therefore,  of  each  must  be  so  ex- 
ercised as  not  unnecessarily  or  unreasonably  to  interefere  with  or 
■obstruct  the  rights  of  the  other.* 

If  the  channel  of  a  floatable  stream  is  changed  or  deepened  by 
riparian  proprietors  for  the  purpose  of  making  its  navigation  less 
difiicult,  any  person  using  the  stream  has  the  benefit  of  the  im- 
provements ;  but  where  the  mill  owner  has  not  attempted  such 
improvements,  the  log  owner  is  not  entitled  to  avail  himself  of  the 
reserved  water  in  getting  over  or  past  the  dam,  provided  the  flow 
of  the  natural  stream  is  left  unchanged.  As  the  log  owner  cannot 
•erect  dams  to  create  a  head  for  facilities  in  the  driving  of  the  logs 
without  the  land  owner's  consent,  no  more  can  he  impress  into  his 
service  the  use  of  dams  lawfully  erected  for  other  useful  purposes 
by  other  men.  As  he  cannot  remove  or  interfere  with  the  natural 
obstructions  to  the  riparian  owner's  injury,  he  cannot  Intermeddle 

^Washington  Ice  Co.  v.  SJwrtall,  101  111.  46;  Mill  River  Woolen  Mfg.  Co.  v. 

Smith,  34  Conn.  462;  Paine  v.  Woods,  108  Mass.  173.    See  19  Am.  L.  Reg. 

N.  S.  337,  345. 
^Dwinel  v.  Veazie,  44  M(!.  167.     See  Hill  v.  Smith,  27  Cal.  476,  32  Cal.  166. 
'Brown  v.  Black,  43  Me.  443. 
*Lancey  v.  Clifford,  54  Me.  487;  Bmnel  v.  Veazie,  50  Me.  479. 


414  IMPOSED   DUTIES,  PERSONAL.  [Part    II. 

with  legally  authorized  artificial  obstructions,  which  do  not  deprive- 
him,  in  any  respect,  of  the  ordinary  and  natural  flow.  The  only 
obligation  which  the  law  lays  upon  the  mill  owner  is  not  to  injure 
the  river  passage.  He  is  not  required  to  make  it  better.  The 
mill  owner  is  entitled  to  the  water  for  working  his  mill.  If  others 
are  entitled  to  a  reasonable  use  of  it,  for  the  purpose  of  floatage, 
he  is  deprived  of  his  property  without  compensation.  The  doc- 
trine of  reasonable  use  does  not  apply  when  the  river  is  not  natu- 
rally floatable ;  but  it  does  apply  when  it  is  naturally  floatable  or 
log  navigable,  when  both  parties  can  use  the  natural  flow  and  de- 
sire to  use  it  at  the  same  time.  In  rivers  which  are  capable  of 
more  extended  navigation,  the  public  right  extends  equally  to  all 
navigable  portions  of  the  river.  But  while  the  right  of  floatage- 
in  such  streams  is  not  of  such  paramount  character  as  to  prevent 
the  erection  of  dams,  bridges  and  flumes  and  the  like,  which 
do  not  prevent  a  reasonable  chance  for  public  passage,  still  the 
right  of  passage  is  the  dominant  right,  because  it  is  a  right  that 
cannot  be  exercised  satisfactorily  unless  the  other  right  tempo- 
rarily yields  to  it ;  but  its  use  must  not  be  usurping,  excessive  or 
unreasonable.* 

The  same  principle  in  regard  to  use  by  the  riparian  proprietors 
applies  as  to  the  public  use  of  the  stream.  As  a  highway,  it  must 
be  reasonable  use,  and  not  inconsistent  with  the  reasonable  enjoy- 
ment of  the  stream  by  others  who  have  an  equal  right  to  its  use. 
Eeasonable  use  is  the  touchstone  for  determining  "  the  rights  of 
the  respective  parties."  Thus,  in  considering  this  subject,  we  find 
the  public  right  of  way  over  the  stream,  and  the  land  owner's  right 
of  soil  under  it,  and  his  right  to  use  its  flow,  are  the  same.  TJie 
rio-hts  of  both  these  parties  are  necessary  for  the  purposes  of  com- 
merce, agriculture  and  manufacture.  The  products  of  the  forest 
would  be  of  little  value  if  the  riparian  proprietors  had  no  right  in 
the  class  of  streams  we  are  considering  to  use  the  water  by  dams, 
and  erect  mills  for  the  manufacture  of  these  products  into  lumber. 
The  right  to  use  the  water  of  such  streams  for  milling  purposes  is 
as  necessary  as  the  right  of  transportation.  Indeed,  it  is  this  con- 
sideration that  often  imparts  the  chief  value  to  the  estate  of  the 
riparian  proprietors,  and  without  which  it  would  have  no  value 

^Pearmn  v.  Rolfe,  76  Me.  380;    A.  C.  Conn   Co.  v.  Little  8.  L.  Mfg.  Co.  74 
Wis.  652. 


Chap.  XIX.]        FLOATABLE    AND    PRIVATE    STREAMS.  41.> 

whatever  in  many  instances.  Bat  the  erection  of  a  dam  across  a 
floatable  stream,  without  making  or  keeping  suitable  sluices  for 
the  passage  around  or  through  such  dam  of  logs  floating  in  the 
stream,  is  a  nuisance. 

This  was  held  in  Brown  v.  Chadhourne^  31  Me.  9,  50  Am.  Dec. 
641,  which  was  a  case  in  which  an  individual  recovered  against  the 
riparian  owners  of  land  along  a  floatable  stream,  not  properly  speak- 
ing navigable,  for  maintaining  a  dam  across  such  stream  without 
maintaining  suitable  sluices  around  or  through  it  for  the  passage 
of  logs.  It  was  an  action  on  the  case  for  erecting  and  maintaining 
a  dam  across  a  stream  called  "  Little  River, "  and  obstructing  the 
passage  of  the  water  and  the  plaintiffs'  logs.  The  river  was  about 
three  miles  in  length,  running  from  a  lake  to  tide-water.  It  was- 
from  nine  feet  to  four  rods  in  width,  and  had  been  used  many 
years  for  floating  logs  and  rafts,  and  sometimes  boats.  "Within 
twenty  years,  dams  and  mills  had  been  erected  upon  it.  The 
plaintiffs  disclaimed  the  right  to  recover  upon  the  ground  of  pre- 
scription or  use,  but  claimed  it  because  the  stream  was  a  public  one 
in  its  natural  state.  The  jury  were  instructed  that,  it  being  a  fresh- 
water stream,  the  presumption  was  that  it  was  private  property,  and 
tiie  burden  was  on  the  plaintiffs  to  establish  the  contrary  by  satisfac- 
tory proof  that  it  was  a  navigable  or  floatable  river,  and  in  its  nat- 
ural condition  capable  of  being  used  for  running  logs,  the  rule 
of  the  common  law,  that  riparian  proprietors  own  to  the  center  of 
fresh-water  rivers,  having  been  adopted  in  that  State.'  The  first 
question  which  was  considered  in  the  case  was :  It  being  conceded 
that  the  bed  of  the  river  belongs  to  the  owners  of  the  land  on 
either  side,  can  a  right  to  use  the  waters  be  obtained  unless  that 
use  has  continued  twenty  years,  the  ordinary  length  of  time  for 
the  acquisition  of  an  easement  ? 

Berrxj  v.  Carle,  3  Me.  269 ;  Shaw  v.  Crawford,  10  Johns.  236, 
and  Scott  v.  Will-son,  3  N.  H.  321, —  in  which  the  right  is  consid- 
ered as  dependent  on  long  usage,  are  cited. 

The  opinion  quotes  what  is  laid  down  by  Zo?'d  Hale  in  his  cele- 
brated treatise  De  Jure  Maris,  above  stated,  and  makes  on  it  this 
comment :    "  He  makes  no  mention  of  prescription  or  length  of 

'  See  Berri/  v.  Carle,  3  Me.  2Q9\  Spring  v.  Russell,  7  Me.  273.     See  also  ante,  p. 
389,  note  2. 


416  IMPOSED   DUTIES,  PERSONAL.  [Part   II. 

time  bj  which  the  riglit  is  obtained,  but  of  the  actual  use  in  fact 
as  indicating  public  rivers." 

In  Wadsworth  v.  Smith,  11  Me.  278,  26  Am.  Dec.  525,  the  doc- 
trine is  stated  that  when  a  stream  is  naturally  of  sufScient  size  to 
float  boats  or  mill  logs,  the  public  has  a  right  to  the  free  use  for 
that  purpose.  But  such  little  streams  or  rivers  as  are  not  floatable, 
that  cannot  in  their  natural  state  be  used  for  the  carriage  of  boats, 
rafts  or  other  property,  are  wholly  and  absolutely  private,  not  sub- 
ject to  the  servitude  of  the  public  interest,  not  to  be  regarded  as 
public  highways  by  water,  because  they  are  not  susceptible  of  use 
as  a  common  passage  for  the  public.  The  same  principle  was 
stated  by  Miller,  Ch.  J.,  in  Spring  v.  Russell,  7  Me.  273,  and  is 
also  recognized  in  Angell  on  Tide  Waters,  75,  and  Palmer  v.  Mul- 
ligan, 3  Cai.  307,  2  Am.  Dec.  270. 

The  distinguishing  test  between  those  rivers  which  are  entirely 
private  property,  and  those  which  are  private  property  subject  to 
the  public  use  and  enjoyment,  consists  in  the  fact  whether  they 
are  susceptible  or  not  of  use  as  a  common  passage  for  the  public' 
The  right  of  passage  and  of  transportation  upon  rivers  not  strictly 
navigable  belongs  to  the  public  by  the  principles  of  the  common 
law."  This  subject  was  very  fully  considered  in  Esson  v.  McMas- 
ter,  1  Kerr  (N".  B.)  501,  in  the  Province  of  jN^ew  Brunswick,  de- 
ciding the  rule  of  law  as  it  is  stated  to  be  in  Wadsworth  v.  Smith, 
11  Me.  278,  26  Am.  Dec.  525.  The  case  of  Bowe  v.  Titus,  1 
Allen  (ISr.  B.)  326,  in  that  Province  was  decided  upon  the  same 
principle.  See  also  Adams  v.  Pease,  2  Conn.  481;  Carson  v. 
Blazer,  2  Binn.  475,  4  Am.  Dec.  463. 

A  stream  could  be  subjected  to  public  servitude  by  long  use, 
were  it  not  that  there  are  many  large  rivers  in  newly  settled  States 
of  which  the  public  would  be  deprived  of  the  use,  although  nature 
has  plainly  declared  such  rivers  to  be  public  highways.  The  true 
test,  therefore,  to  be  applied  in  such  cases,  is  whether  a  stream  is 
inherently  in  its  nature  capable  of  being  used  for  the  purpose  of 
commerce  for  the  floating  of  vessels,  boats,  rafts  or  logs.  When  a 
stream  possesses  such  a  character,  then  the  easement  exists,  leaving 

'Per  Spence,  Ch.  J.,  in  People  v.  Plait,  17  Johns.   216,  8  Am.   Dec.  382; 

Hooker  v.  Cummings,  20  Johns.  91,  11  Am.  Dec.  249. 
«Per  Parker,  Ch.  J.,  in  Com.  v.  Chapin,  5  Pick.  199,  16  Am.  Dec.  386. 


Chap.  XIX.]        FLOATABLE    AND    PRIVATE   STREAMS.  417 

to  the  owner  of  the  bed  all  other  modes  of  use  not  inconsistent 
with  it.  For  a  riparian  owner  cannot  acquire  by  prescriptive  use 
a  riglit  which  will  defeat  or  destroy  the  right  of  the  public  in  a 
stream  used  for  floating  logs,"  and  the  rights  of  pul)lic  use  have 
been  in  some  States  carried  so  far  as  to  place  fresh-water  streams 
on  the  same  ground  as  those  in  which  the  tide  ebbs  and  flows,  and 
which  alone  are  considered  strictly  navigable  at  common  law,  and 
to  exclude  the  owners  of  the  banks  and  beds  from  all  property  in 
them.''  In  certain  States  of  the  Union  such  a  rule  lias  been  estab- 
lished by  judicial  decisions,  and,  in  others,  by  legislative  Acts. 
None  of  the  authorities  require  the  stream  to  possess  the  quality 
of  being  capable  of  such  use  during  the  whole  year.  A  distin- 
guishing criterion  consists  in  its  fltness  to  answer  the  wants  of 
those  whose  business  requires  its  use.  Its  perfect  adaptation  to 
such  use  may  not  exist  at  all  times,  although  the  right  to  it  may 
continue  and  be  exercised  wdienever  an  opportunity  occurs.  In 
many  rivers  where  the  tide  ebbs  and  flows,  the  public  are  deprived 
of  their  use  for  navigation  during  the  reflux  of  their  waters.  A 
way  over  which  one  has  a  right  to  pass  may  be  periodically  cov- 
ered with  water.  In  hmh  northern  latitudes  most  fresh-water 
rivers  are  frozen  over  during  several  months  of  the  year.  Even 
some  tide-waters  are  incapable  of  any  beneflcial  use  for  purposes 
of  commerce  in  the  season  of  winter,  owing  to  the  accumulation  of 
ice.  The  lapse  of  time  during  which  a  dam  has  been  used  across 
a  floatable  stream  by  a  riparian  owner  can  give  no  prescriptive 
right  to  such  use  as  against  and  to  the  prejudice  of  the  public  use, 
though  it  might  give  a  right  to  keep  up  such  dam  as  against  an- 
other riparian  owner  by  prescription.  If  the  law  was  otherwise, 
in  many  parts  of  the  United  States,  the  public  would  necessarily 
lose  the  use  of  many  floatable  streams  over  which  riparian  owners 
have  kept  up  dams  for  more  than  twenty  years  before  the  public 
had  any  occasion  to  float  logs  down  them,  because  the  batiks  of  tlic 
stream  remained  unsettled  and  the  timber  on  such  streams  there- 
fore entirely  uncut.  The  riparian  owner  of  such  dam  could  never 
acquire  by  prescription  an  exclusive  right  to  the  use  of  such  stream 
as  if  it  were  a  private  stream  as  against  the  public* 

^Collins  V.  Howard,  65  N.  H. . 

« ''Gaston  v.  Mace,  33  W.  Va.  14,  5  L.  R.  A.  393. 

27 


ilS  IMPOSED   DUTIES,    PERSONAL.  [Part  II. 

Section  46. — Basements    in  Rivers,    Streams    and 
Ponds  Acquired  hy  Grant.— Parol  License. 

A  riparian  owner  upon  a  technically  navigable  stream — not 
simply  a  floatable  stream — lias  no  right,  without  legislative  con- 
sent, to  build  a  clam  across  snch  stream  for  any  purpose.'  An 
express  grant  to  an  individual  by  the  government,  of  a  right  to- 
erect  a  dam  and  flow  back  water  upon  the  land  of  the  riparian 
owners,  must  be  shown  to  have  been  sanctioned  by  law  or  custom 
of  that  government,  and  will  not  be  presumed."  But  such  right 
being  shown  to  be  legal,  a  licensee  from  the  State  of  the  right  to 
use  the  waters  of  a  great  pond  will  be  protected  in  such  right  as 
against  one  who  is  removing  such  water  without  authority,  espec- 
ially where  the  licensee  has  erected  valuable  mills,  and  has  had 
the  exclusive  use  and  control  of  the  waters  in  their  operation  for 
a  period  of  sixty-five  years.* 

By  the  grant  of  anything  co7iceditur,  et  id  sine  quo  res  ipsa 
haberi  noii  del  It,  as,  if  one  grants  his  trees,  the  grantee  may  enter 
upon  his  lands  for  the  cutting  down  and  carrying  them  away.* 
By  a  grant  of  a  messuage  cum  jpertinentiis,  a  conduit,  with  water 
pipes  to  it,  enjoyed  any  time,  will  pass.* 

The  doctrine  is  too  familiar  to  justify  further  elaboration,  that 
when  the  owner  of  an  estate,  during  such  ownership,  has  by  arti- 
ficial arrangements  made  one  part  subservient  to  the  other,  thus- 
enhancing  the  value  of  one  by  burdening  the  other,  the  convey- 
ance of  that  the  value  of  which  is  thus  enhanced  will  carry  the 
right  to  an  easement  in  the  other  to  the  extent  necessary  to  the 
enjoyment  of  that  granted  in  the  same  condition  in  which  it  wa& 
enjoyed  before.*  Where  the  grantor  had  ])y  the  previous  use 
imposed  a  burden  on  one  part  of  his  estate,  in  favor  of  the  other, 
the  right  to  continue  this  burden  was  one  which  he  had  the  power 

^Green  Bay  <&  M.  Canal  Co.  v.  Kmiknuna   Water-Poxcer  Go.  70  Wis.  653;. 

Aldioorth  v.  Z?//i?i  ( Mass.  Jaa.  9,  1891)  10  L.  R.  A.  210. 
^Rhodes  V.  Whitehead,  27  Tex.  304. 
^Proprietors  of  Mills  v.  Braiatree  Water  Supply  Co.  149  Mass.  478,  4  L.  R.  A. 

272. 
^Comyn,  Dig.  vol.  4,  title  Grant,  E,  11, 

^Nicholas  \.  Chamberlain,  Cro.  Jac.^121;  ArcJier  v.  Pennett,  1  Lev.  131. 
^Ottv.  Kreiter,  110  Pa.  370,  1  Cent.  Rep.  391;  John  Hancock  Mut.  Ins.  Co, 

V.  Patterson,  103  lad.  582,  1  West.  Rep,  124. 


Chap.  XIX.]  EASEMENTS    ACQUIRED    BY    GKANT.  -iTJ 

to  cjrant.  It  passed  with  his  grant  of  the  mill  and  the  water  rights 
appurtenant  to  it.' 

In  a  case  where  water  rights  are  granted  without  being  other- 
wise specifically  defined,  such  rights  are  measured  and  limited,  as 
against  the  grantor,  by  the  extent  to  which  they  were  designed  to 
be  used  and  had  actually  been  made  available  for  and  applied  to 
the  use;  and  the  practical  tests  applicable  to  a  mill-dam  thus  granted 
are  the  height  at  which  the  water  has  been  usually  and  ordinarily 
maintained  at  the  heart  of  the  dam,  without  regard  to  the  perma- 
nency of  the  means  employed  to  raise  it,  and  also  the  distance  the 
water  is  set  back  during  the  ordinary  stages  of  the  stream.' 

Mr.  Angell,  in  his  work  on  Watercourses,  summarizes  the  result  of 
the  authorities  as  applied  to  rights  acquired  by  prescription  in  the 
following  language  :  "  Where  the  owners  of  a  dam  have,  for  a 
period  of  twenty  years,  made  use  of  flash  boards  on  their  dam  for 
the  purpose  of  retaining  the  water  during  periods  of  the  year 
when  the  water  is  low,  they  may  acquire  a  right  to  substitute  for 
such  flash  boards  a  permanent  structure,  so  long  as  the  height  of 
the  dam  is  not  raised  thereby,  and  no  injury  is  done."  As  against 
the  grantor  of  a  water  right,  a  rule  not  less  favorable  to  the 
grantee  than  that  above  stated  should  obtain  where  an  extension 
of  such  a  mill-dam,  necessary  to  close  up  an  artificial  channel,  tends 
to  the  better  security  of  the  dam,  without  injury  to  or  invasion  of 
the  property  subservient  to  the  easement.  The  right  to  make  such 
extension  results  from  the  terms  of  the  grant,  and  whatever  rights 
the  grantee  of  the  mill-dam  might  have  asserted  against  his  grant- 
or, he  may  assert  against  such  grantor's  remote  grantee.' 

A  grant  of  a  mill  site  includes,  as  an  appurtenance,  a  right  to 
have  the  water  flow  off  through  the  whole  extent  of  a  race-way, 
extending  into  other  lands  of  the  grantor.^     By  the  grant  of  mills, 

^  Green  V.  Collins,  86  N.  Y.  246. 

^Cowellv.  Thayer,  5  Met.  253;  Ray  v.  Fletcher,  12  Cush.  200;  Daniels  v.  Cit- 
izens Sav.  Inst.  127  Alass.  534;  Voter  v.  ILMs,  69  Me.  19;  Lary  v.  Arnett^ 
33  Pa.  169;  Hynds  v.  Shults,  39  Barb.  600;  Ott  v.  Kreiter,  110  Pa.  370.  1 
Cent.  Rep.  391;  Marcly  v.  Schults,  29  N.  Y.  346;  Ang.  Watercourses, 
§380. 

*Laminott  v.  Ewers,  106  Ind.  310,  4  West.  Rep.  553. 

*New  Ipswich  W.  L.  Factory  v.  Batchelder,  3  N.  H.  190.  See  Johnson  v. 
Jordan,  2  Met.  234;  Leonard  v.  White,  7  Mass.  8;  Blaine  v.  Chambers, 
1  Serg.  &  R.  169;  Pickering  v.  Stopler,  5  Serg.  &  R.  107:  United  States  v. 
Appleton,  1  Sumn.  492;  Bobbins  v.  Barnes,  Hob.  131;  Whalley  v.  Tlwmp- 


420  IMPOSED    DUTIES,  PERSONAL.  [Part    II. 

the  water,  flood-gates  and  the  like  that  are  of  necessary  use  to  the 
mill  pass.' 

If  the  owner  of  land  makes  one  part  subservient  to  the  other, 
as  by  the  construction  of  a  mill-dam,  the  conveyance  of  the  latter 
part  will  carry  the  right  of  an  easement  in  the  other,  to  the  extent 
necessarj'  to  the  enjoyment  in  the  same  condition  in  which  it  was 
enjoyed  before." 

A  deed  of  land  as  a  mill  site,  with  the  right,  as  appurtenant 
thereto,  of  constructing  a  canal  through  the  grantor's  land,  and  of 
drawing  water  from  a  pond  for  the  use  of  a  mill  on  the  land  con- 
veyed, grants  by  implication  the  right  to  maintain  the  pond,  not- 
withstanding the  provision  that  no  rights,  privileges,  easements 
or  appurtenances  shall  pass  by  intendment  or  implication.' 

Where  it  is  apparent  that  a  grantor  intended  to  dispose  of  the 
entire  mill  property  conveyed,  the  use  of  the  phrase,  "  all  my 
water  privileges,"  including  the  various  mills  and  manufactories 
connected  therewith,  without  a  description  by  metes  and  bounds, 
includes  a  dam  and  pond  which  are  an  essential  part  of  the  privi- 
leges and  property.* 

An  agreement  between  lot  owners  on  the  west  side  and  owning 
to  the  thread  of  a  stream,  to  share  the  water-power  appurtenant 
to  lots  on  the  east  side  1)ought  by  them  in  common  among  them- 
selves in  certain  proportions,  to  be  used  on  the  west-side  lots,  no 
one  conveying  to  any  other  any  interest  in  his  independent  estate 
in  the  west-side  lots,  although  binding  as  a  personal  covenant  upon 
any  of  such  owners  who  may  subsequently  purchase  lots  on  the 
east  side  of  the  stream,  to  share  the  water-power  thus  acquired 
with  the  other  west-side  owners,  yet,  not  being  a  covenant  run- 
ning with  the  land,  does  not  bind  their  grantees  of  east-side  lots, 
who  were  not  parties  and  did  not  purchase  subject  to  the  agree- 
ment, or  strip  the  east-side  lots  of  their  natural  water  right." 

An  instrument  in  form  a  conveyance  of  a  fee,  whereby  a  grant- 
sow.,  1  Bos.  &  P.  374,  note;  Grant  v.  Chase,  17  Mass.  443;  HewlinsY.  Ship- 
pam,  7  Dow.  &  Ry.  783,  5  Barn.  &  C.  231;  Shiiry  v.  Figgott,  3  Bulst.  339; 
StricMer  v.  Todd,  10  Serg.  &  R.  63. 

'Shepherd's  Touchstone,  89. 

^Lammottv.  Ewers,  106  Ind.  310,  4  West.  Rep.  553. 

^St.  Anthony  Falls  Water-Power  Co.  v.  Minneapolis,  41  Minn.  270. 

*Nye  V.  Eoyle,  120  N.  Y.  195. 

^Lawrence  v.  Whitney,  115  N.  Y.  410.  5  L.  R.  A.  417. 


Chap.  XIX.]         EASEMENTS    ACQUIRED    BY    GKANT.  421 

or,  in  consideration  of  an  annnal  rent,  leases  to  a  mill  owner  the 
right  to  flow  certain  lands  so  long  as  he  shall  see  fit,  is  a  grant  of 
an  easement  and  not  a  lease  from  year  to  year.'  But  mere  parol 
encouragement  to  establish  a  mill  for  the  public  convenience,  given 
bj  upper  riparian  owners,  is  too  vague  and  indefinite  to  constitute 
a  license  to  flow  their  lands  by  a  dam."  But  after  the  purchase 
of  a  mill  site  and  the  completion  of  a  dam  by  a  licensee  of  the 
right  to  flow  the  lands  of  another,  it  is  too  late  for  the  latter  to 
revoke  the  license.' 

In  those  courts  which  deny  that  a  parol  license,  and  acts  done 
under  it,  upon  the  land  of  the  licensor,  will  estop  the  licensor, 
this  result  will  not  follow.*  Thus,  in  Stevens  v.  Stevens,  11  Met. 
251,  the  defendants'  grantor  erected  a  dam  on  the  land  of  plain- 
tiffs' grantor.  The  plaintiffs,  subsequently  acquiring  title  to  the 
land,  notified  the  defendants  to  remove  it,  and,  the  notice  being 
disregarded,  commenced  its  removal.  While  the  plaintiffs  were 
thus  engaged,  the  defendants  entered  and  restored  so  much  of  the 
dam  as  had  been  removed,  making  some  additions  to  it.  A  bill 
in  equity  was  then  brought  to  have  the  dam  abated  as  a  nuisance. 
It  was  held  that  while,  for  several  years,  the  defendants  had  en- 
joyed the  privileges  allowed  by  their  license,  they  were  not  re- 
sponsible for  any  acts  done  by  them  in  jDursuance  of  said  license 
and  permission,  before  tlie  same  was  countermanded  by  the  plain- 
tiffs ;  that  they  were  not,  therefore,  liable  to  pay  any  expenses  for 
the  removal  of  the  old  dam,  although  the  same  might  be  removed 
by  the  plaintiffs.  So  far  as  they  had  built  a  new  dam  or  repaired 
and  made  addition  to  the  old  one.  after  the  license  was  counter- 
manded, the  defendants  were  held  liable  and  the  plaintiffs  were 
deemed  entitled  to  have  the  same  abated  at  the  expense  of  defend- 
ants. 

The  grant  of  an  easement  for  one  jDurpose  will  not  prevent  the 
acquirement  by  prescription  of  an  additional  easement  exercised 
in  connection  with  the  one  granted.' 

^Tuttle  V.  Harry,  56  Conn.  194,  6  New  Eng.  Rep.  483. 

'^Hines  v.  Jarrett,  26  S.  C.  480. 

^OlmHtead  v.  Abbott,  61  Vt.  281.     See  ante,  pp.  182-184,  and  notes. 

*See  ante,  p.  187,  notes  2,  3. 

^WJieaUey  v.  Ckrisman,  24  Pa.  298;  Clmsted  v.  Loomis,  9  N.  Y.  423. 


422  IMPOSED  DUTIES,  PERSONAL.  [Part  11. 

Section  47. —  Where  It  is  Uncertain  ivhether  the 
Grant  Limits  the  Quantity  of  Water  or  the 
Class  of  Machinery,  the  Limit  will  he  Applied 
to  the  Water. 

A  grantee  of  a  fixed  supply  of  water  is  not  obliged  to  reduce 
the  quantity  because  improved  modern  appliances  can  give  equal 
efficiency  to  a  much  smaller  volume.'  Parties  have  the  right  to 
run  their  factory  as  many  hours  a  day  as  they  consider  proper, 
where  they  have  a  grant  of  water  for  the  purposes  of  their  factory, 
with  no  limitation  therein  upon  the  number  of  hours  per  day  in 
which  they  can  run  the  factory.* 

If  it  is  doubtful  from  the  terms  of  a  grant  whether  the  kind  of 
mill  or  particular  machinery  mentioned  therein,  for  which  water 
is  to  be  furnished,  indicates  the  quantity  of  water  and  measures 
the  extent  of  the  power  intended  to  be  conveyed,  or  is  referred  to 
as  a  limit  of  the  use  to  the  particular  kind  of  mill  or  specified  ma- 
chinery, the  former  construction  will  be  favored.  Thus,  a  grant 
of  a  certain  water  privilege  for  the  purpose  of  propelling  a  factory 
and  its  machinery  and  appurtenances,  the  building  to  be  of  a  cer- 
tain size,  with  necessary  appurtenances  and  machiner}'-,  will  be 
construed  to  measure  the  quantity  of  water,  and  will  not  limit  the 
use  of  water  to  carry  only  such  machinery  as  may  be  in  the  main 
building,  if  some  of  the  machinery  is  in  an  annex  and  no  more 
power  is  required  to  propel  it  than  if  it  were  in  the  main  build- 
ing.^ So  the  words  of  a  grant  in  a  conveyance  of  a  grist-mill, 
with  a  right  to  use  the  waters  as  then  used,  limit  the  quantity  of 
the  water,  but  do  not  restrict  the  method  by  which  it  is  to  be  ap- 
plied.* Nor  will  a  grant  of  water,  with  the  monopoly  giving  the 
exclusive  privilege  of  grinding  grain  at  a  grist-mill,  restrain  the 
grantee  from  using  the  water  for  other  purposes.^ 

Where  a  grantor  owning  all  the  water-power  on  both  sides  of  a 
stream  conveys  a  saw-mill  thereon,  "with  the  right  of  use  of  all 
the  water  not  necessary  in  driving  the  wheel,  or  its  equal,  now 
used  to  carry  the  machinery  in  the  shingle-mill,  meaning  to  con- 

^HartweU  v.  Mutual  L.  Ins.  Co.  50  Hun,  497. 

2  ^Garleton  Mills  Go.  v.  Silver,  82  Me.  215,  8  L.  R.  A.  440. 

'^Terry  v.  Smith,  47  Hun,  333. 

^Hartwdlv.  Mutual  L.  Ins.  Co.  50  Hun,  497. 


Chap.  XIX.]  GRANT    LIMITING    USE   OF   WATER.  423 

vey  a  right  to  all  the  surphis  of  water  not  required  for  the  shingle- 
mill  or  other  equal  machinerj;"  and  the  shingle-mill  contains  va- 
rious other  machinery  besides  the  shingle-machine, — the  use  is  not 
confined  to  the  specific  purpose  of  driving  that  machine.' 

Under  such  deed,  the  owner  of  the  shingle-mill  may  lawfully  put 
into  it  a  board-saw,  provided  tlie  wheel  consumes  no  more  water 
than  was  previously  used,  even  if  the  owner  of  the  saw-mill  there- 
by loses  all  hispatrons."  So  a  grant  to  a  riparian  proprietor  of 
the  right  to  draw  a  certain  quantity  of  water  from  the  grantor's 
pond  each  day,  and  no  more,  confers  no  right  to  have  the  water 
held  back  so  that  there  may  at  all  times  be  enough  in  the  pond  to 
supply  the  given  amount.  The  grantor,  however,  will  not  be 
permitted  to  unreasonably  let  down  the  water  for  his  own  conven- 
ience, and  thereby  render  nugatory  the  right  of  his  grantees  to 
obtain  water."  And  a  provision  in  a  deed  granting  lower  ripa- 
rian rights,  requiring  the  grantee  to  contribute  towards  the  ex- 
pense of  maintaining  the  dam,  flume  and  gate  at  the  outlet  of  the 
reservoir,  does  not  alone  give  him  the  right  to  have  the  water 
held  back  for  his  benefit." 

The  following  rule  for  computing  the  quantity  of  water  dis- 
charged through  spouts  under  a  given  head  has  been  adopted  by 
the  courts,  viz.:  Multiply  the  square  root  of  the  number  of  feet 
in  the  head  by  8,025,  and  multiply  this  result  by  the  square  feet 
of  the  area  of  the  discharge,  and  the  result  is  the  cubic  feet  of 
discharge  per  second.^ 

A  conveyance  of  a  water-power,  describing  the  water  conveyed 
as  sufficient  to  run  a  grist-mill  and  a  cotton  or  woolen  factory, 
*'  and  for  those  purposes  only,"  limits  the  use,  and  not  the  quan- 
tity, of  the  water;  °  and  the  grant  to  a  lower  riparian  proprietor,  of 
the  right  to  have  a  quantity  of  water  come  down  the  stream  suffi- 
cient to  run  two  paper-engines  as  used  in  the  grantor's  paper-mill, 
does  not  include  a  right  to  the  amount  required  to  run  the  entire 
mill,  including  all  the  other  machinery  therein,  although  it  is  only 
such  as  is  necessary  for  a  mill  running  two  engines,  where  the 
engines  were  run  by  a  separate  w^ator-wheel  with  which  no  other 

I  2  Warner  v.  Cushman,  82  Me.  168. 

^*  Whitney  v.  Wheeler  Cotton  Mills,  151  Mass.  396,  7  L.  R.  A.  613. 

^Hartwell  v.  Mutual  L.  Ins.  Go.  50  Hua,  497. 

*  Clement  v.  Gould,  61  Vt.  573. 


424  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

machinery  was  connected/  And  the  grantee  of  a  lower  privi- 
lege gets  no  right  to  the  use  of  a  reservoir  owned  by  the  grantor, 
unless  it  is  so  specified  in  the  deed,  even  although  necessary  for 
the  beneficial  use  of  his  mill/ 

To  the  lower  mill  owners,  the  upper  grantee  of  the  water- 
power  is  bound  to  send  down  the  quantity  of  water  called  for  by 
their  several  deeds,  without  reference  to  the  convenience  of  oper- 
ating its  own  mills ;  though  this  duty  would  probably  be  suspend- 
ed in  case  a  temporary  stoppage  should  become  necessary  for 
repairs,  or  other  emergency,  outside  of  the  usual  course  of  the 
operation  of  the  mill/ 

Section  48. — Easements  in   Flowing    Water    Ac- 
quired hy  Prescription. 

An  easement  may  be  acquired  by  prescription  by  which  water 
collected  upon  land  of  one  person  must  be  allowed  to  overflow 
the  lands  of  an  adjacent  proprietor  ;  and  the  land  owner  has  the 
right,  by  prescription,  to  discharge  the  surface  water  of  his  land 
through  a  ravine  where  it  runs  naturally  and  has  been  permitted 
to  run  for  over  twenty  years.  But  he  has  not  the  right,  by  dig- 
ging ditches  or  tiling  drains,  to  empty  out  sag-holes  into  this  ra- 
vine upon  the  lands  of  the  adjacent  proprietor.*  A  special  right, 
different  from  a  general  one,  may  be  acquired  by  an  adjoining 
proprietor,  by  grant  or  by  possession  for  such  a  length  of  time  as 
will  furnish  presumptive  evidence  of  a  grant.  In  England  it  has 
been  decided  that  twenty  years'  exclusive  enjoyment  of  water  in  a 
particular  manner  affords  a  conclusive  presumption  of  right  in  the 
party  enjoying  it,  derived  from  some  individual  having  the  power 
to  make  it,  or  from  the  Legislature ;  and  in  some  of  the  States 
fifteen  years'  exclusive  enjoyment  will  furnish  the  same  evidence. 
But  no  title  to  land  under  water  can  be  acquired  by  such  use  of 
the  waters  as  the  planting  of  oysters  therein  for  any  length  of 

1  Whitney  v.  Wheeler  Gotlon  Mills,  151  Mass.  396,  7  L.  R.  A.  013. 

Wrace  v.  Tale,  4  Allen.  393. 

^Hankey  v.   Clark,  110  Mass.  263;  Gould  v.  Boston  Duck  Co.  13  Gray,  442; 

Pitts  V.  Lancaster  Mills,  13  Met.  156;  Drake  v.  Hamilton   Woolen   Co.  9S> 

Mass.  580. 
^Gregory  v.  Bush,  64  Mich.  37,  7  West.  Rep.  169. 


Chap.  XIX.]       EASEMENTS   ACQUIRED    BY    PRESCRIPTION.  425 

time.'  Sncli  exclusive  right,  moreover,  must  be  measured  and  lim- 
ited by  the  extent  of  its  enjoyment,  and  the  occupier  can  no  more 
enlarge  it  than  he  can  assume  a  new  right.' 

The  law  presumes  a  grant  of  an  easement,  the  extent  of  wliich 
is  measured,  not  by  the  actual  or  average  depth  of  the  water  at 
any  given  point,  but  by  the  nature  and  extent  of  the  obstruction 
itself.^  The  mere  nonuser  of  a  water-power  by  a  riparian  owner 
will  not  operate  to  impair  his  title,  or  confer  any  right  thereto  on 
another.  He  has  a  legal  right  to  have  the  stream  continue  to 
flow  through  his  land,  irrespective  of  whether  he  may  need  it  for 
any  special  purpose  or  not.* 

Where  the  right  to  a  special  use  of  the  flowing  water  is  rested 
upon  a  presumed  grant  or  prescription,  the  user  must  have  been 
uninterrupted.'  But  the  doctrine  of  prescription,  or  presump- 
tion of  grant  from  lapse  of  time,  can  have  no  application  to  a  case 
of  underground  waters  percolating,  oozing  or  filtrating  through 
the  earth.* 

It  is  held  in  Striclder  v.  Todd^  10  Serg,  &  R.  63,  to  be  well- 
settled  law  that,  if  there  has  been  an  uninterrupted  and  exclusive 
enjoyment  for  more  than  twenty-one  years,  of  living  surface 
water,  in  any  particular  way,  it  will  create  a  conclusive  presump- 
tion of  right  in  the  parties  so  enjoying  it  equal  to  a  right  by 
grant.  The  same  rule  is  substantially  declared  in  Hoy  v.  Sterrett, 
2  Watts,  327;  Darlington  v.  Paintei\  7  Pa.  473,  and  Wheatley  v. 
Chrisman^  24  Pa.  303.  But  a  lower  riparian  owner  can  acquire 
no  prescriptive  rights  from  mere  diversion  and  use  of  the  water 
below,  as  against  an  upper  owner.'' 

^ People  V.  Lowndes,  55  Hun,  469. 

^Ohapel  V.  Smith,  80  Mich.  100;  Ingraham  v.  Hutchinson,  3  Conn.  584;  3 
Kent,  Com.  356. 

^Gehman  v.  Erdman,  15  W.  N.  C.  278. 

^Garwood  v.  Mw  York  Cent.  &  H.  R.  R.  Co.  83  N.  T.  400;  Pilhhnry  v.  M<wre, 
44  Me.  154;  Blanchard  v.  Baker,  8  Me.  253,  23  Am.  Dec.  504;  Oardner  v. 
Newburgh,  2  John.s.  Ch.  162,  1  N.  Y.  Ch.  L.  ed.  332,  7  Am.  Dec.  526, 
note,  532;  Plumleigh  v.  Daicsan,  6  111.  544,  41  Am.  Dec.  199;  Caryv.  Dan- 
iels, 8  Met.  466,  41  Am.  Dec.  532:  Billing  v.  Murray,  6  Ind.  324.  63  Am. 
Dec.  385;  Whitney  v.  Wheeler  Cotton  Mills,  151  Mass.  396,  7  L.  R.  A.  613. 

^Turnbull  v.  Rivers,  3  McCord,  L.  131;  Pollard  v.  Barnes,  2  Cush.  191 ;  Branch 
V.  Doane,  18  Conn.  233;  Pierce  v.  Selleck,  18  Conn.  821;  Delahoussaye  v. 
Judice,  13  La.  Ann.  587. 

^Frazier  v.  Brown,  12  Ohio  St.  294;  Van  Wycklen  v.  Brooklyn,  118  N,  Y.  424. 

"fMud  Creek  I.  A.   &  Mfg.  Co.  v.  Vivian,  74  Tex.  170. 


426  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

An  easement  in  the  use  of  flowing  water  will  be  presumed  from 
lapse  of  ti  me,  as  for  twenty-one  years. 

In  Bealey  v.  Shaw,  6  East,  208,  it  is  said  that  an  adverse  right 
may  exist  founded  on  the  occupation  of  the  owner ;  and  though  a 
stream  be  either  diminished  in  quantity,  or  even  corrupted  in  qual- 
ity, as  by  means  of  the  exercise  of  certain  trades,  yet  if  the 
occupation  of  the  party  so  taking  or  using  it  has  existed  for  so 
long  a  time  as  to  raise  a  presumption  of  a  grant,  the  other  party, 
whose  land  is  below,  must  take  the  stream  subject  to  such  adverse 
right.  Twenty  years'  exclusive  enjoyment  of  the  water  in  any 
particular  manner  affords  an  exclusive  presumption  of  right  in 
the  party  so  enjoying  it. 

A  prescriptive  right  to  flow  water  upon  another's  land  can  be 
acquired  by  twenty  years  of  adverse  user.* 

Where  one  has  laid  an  aqueduct  from  his  premises  to  a  spring 
upon  the  premises  of  another  before  a  deed  is  made,  in  which  the 
latter  covenants  that  the  former  may  have  the  water  as  it  runs  in 
the  aqueduct  as  long  as  he  or  his  heirs  shall  need  it,  and  the 
former  for  more  than  twenty  years  maintains  the  aqueduct  and 
■enjoys  the  use  of  the  water  in  that  way  under  a  claim  of  title 
without  interruption,  and  with  no  objection  from  anyone,  the 
giving  and  acceptance  of  the  deed  is  no  limitation  of  his  right ; 
and  he  has  a  title  to  the  water  and  an  easement  for  the  aqueduct 
which  will  pass  by  a  subsequent  deed  of  his  premises.^ 

In  many  of  the  States  the  time  for  acquiring  a  right  by  pre- 
scription is  regulated  by  statute.  Thus,  in  some  States  the  ordi- 
nary flow  of  the  waters  of  a  creek  through  a  new  channel,  for  more 
than  ten  years  prior  to  the  erection  of  a  dam,  creates  a  prescriptive 
riglit,^  and  in  some  of  the  more  recently  settled  States  the  limi- 
tation of  two  years  for  bringing  an  action  applies  to  damages  oc- 
casioned by  the  erection  of  mill-dams,  and  it  is  so  ruled,  although 
such  dams  are  not  constructed  under  the  terms  or  provisions  of 

Ulessinger's  Appeal,  109  Pa.  285,  1  Cent.   Rep.   424;  Strkklcr  v.  Todd,  10 

Serg.  &  R.  6;^;  Hoy  v.  Sterrett,  2  Watts,  327;  Darlington  y.  Painter,  7  Pa. 

473;  Wheatley  v.  Ghrisman,  24  Pa.  303. 
^Chapel  V.  Smith,  80  Mich.  100;  Gonklin  v.  Boyd,  46  Mich.  56;  Earl  v.  De 

Hart,  12  N.  J.  Eq.  280;  McOeorge  v.  Hoffman,  133  Pa.  381;  Mueller  v. 

Fruen,  36  Minn.  273. 
^Keysar  v.  Covell,  62  N.  H.  283. 
*Smith  V.  Musgrove,  32  Mo.  App.  241. 


"Chap.  XIX.]       EASEMENTS   ACQUIRED    BY    PRESCRIPTION.  427 

the  statute.'  In  tlie  older  States  the  common-law  period  for  pre- 
scription will  authorize  the  use  of  particular  machinery.  Thus 
twenty  3'ears'  user  of  a  turbine  wheel  in  j)lace  of  overshot  wheels 
supposes  a  grant  and  establishes  a  right  to  use  it.'  So  of  the  use 
<>f  a  stream  in  a  particular  way ;'  or  the  use  of  a  dam,  or  a  flume.* 
And  a  grantee  is  bound  equally  with  the  presumed  grantor."  The 
right  to  the  use  of  water  for  domestic  purposes,  although  it  flows 
through  an  aqueduct,  may  be  acquired  by  prescription.*  But  the 
issues  of  fact  must  be  determined  by  a  jur}'.' 

One  acquiescing  in  the  erection  of  a  dam  and  the  overflowing 
•of  his  land  for  over  thirty  years  cannot  enjoin  the  rebuilding  of  a 
part  of  the  dam  carried  away.* 

There  can  be  no  title  by  prescri])tion  unless  it  appear  that  the 
user  was  under  claim  of  right.'  The  user  must  be  adverse,  that 
is,  under  a  claim  of  right,  and  invade  the  right,  with  his  knowledge 
and  acquiescence,  of  the  owner  of  the  land.'"  It  must  have  been 
-enjoyed  under  such  circumstances  as  to  indicate  that  it  was  claimed 
as  a  right  and  was  not  regarded  by  the  parties  as  a  privilege,  rev- 
ocable at  the  option  of  the  proprietor." 

The  finding  by  a  master  in  a  suit  to  restrain  an  interference  with 

^Hardeaty  v.  Ball,  43  Kan.  151. 

^Terry  v.  Smith,  47  Hiui,  333. 

^Slrickler  v.  Todd,  10  Sera:.  &  R.  63;  Winnipiseogee  Lake  Co.  v.  Young,  40 

N.  H.  430;  Hall  v.  McLeod,  2  Met.  (Ky.)  98;  Olney  v.  Fenner,  2  R.  I.  211; 

Parker  v.  Facte,  19  Wend.  309,  315;  Gayetty  v.  Bethune,  14  Mass.  51,  53; 

Pilhbury  V.  Moore,  44  Me.  154. 
*Burnliam  v.  Kempton,  44  N.  H.  88. 
^Raritan  W.  P.  Co.  v.  Veglite,  21  N.  J.  Eq.  478;  Carlisle  v.  Stevenson,  3  Md. 

Ch.  506,  507;  High,  Inj.  (1st  ed.)  §§  494-497,  505;  Southard  v.  Morris  Canal 

&  Bkg.  Co.  1  N.  J.  Eq.  518;  Gould,  Waters,  §§  516,  527.  530;  Wil.<<nn  v. 

Vavghn,  40  Iowa,  179;  Sheldon  v.  Rockwell,  9  Wis.  166;  Cohb  v.  Sntith,  16 

Wis.  661;  Reid  v.  Oifford,  6  Johns.  Ch.  19,  2  N.  Y.  Ch.  L.  ed.  40;  Vail 

V.  Mix,  74  111.  127. 
Wority  V.  Dunning,  78  Me.  381,  3  New  Eng.  Rep.  41. 
''Parker  v.  Foote,  19  Wend.  309;  Vail  v.  Mix,  74  111.  128. 
Wallard  v.  Struckman,  123  111.  636,  12  West.  Rep.  785. 
^Postlethwaiie  v.  Payne,  8  Ind.   104;    Peterson  v.   MeCullmigh,   50  Ind.  41; 

Palmer  v.  Wright,  58  Ind.  489;  McCardle  v.  Barrickloic,  68  Ind.  356. 
^°Sargenty.  Ballard,  9  Pick.  251;  Gloucester  v.  Beach,  2  Pick.  60,  note;  Med- 
ford  V.  Pratt,  4  Pick.  222;  Gayetty  v.  Bethune,  14  Mass.  49,  55;  Parker  v. 

Foote,  19  Wend.  309;  Hart  v.  Vose,  Id.  365;  Luce  v.  Carley,  24AVend.  451; 

Miller  v.  Garlock,  8  Barb.  153;  Chalk  v.  McAlily,  11  Rich.  L.  153;  Mebane 

V.  Patrick,  1  Jones,  L.  23. 
"Bowman  v.  Wickliffe,  15  B.  Mon.  84;  Beall  v.  Chre,  6  Bush,  676;  Eilburn 

V.  Adams,  7  Mel.  33. 


428  IMPOSED  DUTIES,  PERSONAL.  [Part  II, 

a  water  right,  reciting  that  the  defendant's  grantor  told  the  orator's 
grantor  that  if  he  would  dig  at  a  place  pointed  out  and  find  water 
he  might  conduct  it  to  his  premises  and  have  it ;  that  the  orator's 
grantor  did  so  dig  and  find  water  and  convey  it  to  his  premises* 
and  that  the  orator  and  his  grantor,  under  this  right  and  claim,^ 
continued  to  take  it  uninterruptedly  and  openly  for  more  than 
fifteen  years, — shows  a  continuous  exercise  of  adverse  right  under 
a  claim  of  ownership  sufficient  to  create  a  prescriptive  title.' 

If  a  right  is  claimed  by  user,  the  extent  of  the  right  will  be 
fixed  and  limited  by  the  extent  of  the  user  during  the  time  neces- 
sary to  fix  the  right.  The  character  or  quality  of  the  right  will 
be  determined  by  the  manner  and  mode  of  the  user.'  And  the- 
same  proof  of  user  that  establishes  the  right  is  equally  conclusive 
in  fixing  the  limitation  of  that  right.' 

When  one  uses  an  easement  whenever  he  sees  fit  without  asking 
leave  or  without  objection,  the  use  is  adverse ;  and  an  adverse  en- 
joyment of  twenty-one  years  gives  an  undisputed  title  to  the  en- 
joyment.* Where  a  right  is  claimed  by  prescription,  the  time 
from  which  the  period  is  to  be  reckoned  in  computing  is  when  the 
injury  or  invasion  of  right  begins,  and  not  the  time  when  the  party 
causing  it  began  that  which  finally  creates  the  injury." 

In  the  case  of  a  diversion  of  water,  if  the  injury  is  caused  by 
the  change  of  a  dam,  or  of  a  ditch,  or  by  suffering  the  latter  to  be 
filled  up  or  clogged,*  or  by  applying  the  water  to  a  different  use, 
or  if  the  injury  was  caused  by  any  recent  act,  either  of  omission 
or  commission,  on  the  part  of  the  proprietor,  At  may  be  said  he  had 
previously  only  begun  the  work  which  caused  the  injury;  but 
where  at  the  time  the  water  was  first  diverted  from  the  stream, 
and  for  many  years  thereafter,  it  does  not  appear  to  have  caused 

^Blaine  v.  Bay,  61  Vt.  566. 

^Darlington  v.  Painter,  7  Pa.  473;  Holsman  v.  Boiling  Spring  B.  Co.  14  N. 
J.  Eq.  335;  Biglow  v.  Battle,  15  Mass.  313;  Cotton  v.  Pocanset  Mfg.  Co.  18- 
Jviet.  429;  Stein  v.  Burden,  24  Ala.  130;  Russell  v.  Scott,  9  Cow.  279;  Bald- 
win V.  Calkins,  10  Wend.  167;  Manier  v.  Myers,  6  B.  Mon.  132;  Strong  v. 
Benedict,  5  Conn.  2\(i;  Powers  v.  Osgood,  103  Mass.  454;  Burnham  v.  Kemp- 
ton,  44  N.  H.  78,  91. 

^Burnham  v.  Kempton,  44  N.  H.  78;  Carleton  v.  Redington,  21  N.  H.  291; 
Carlisle  v.  Cooper,  19  N.  J.  Eq.  256. 

^Garrett  v.  Jackson,  20  Pa.  331. 

^Waslib.  Easem.  §  49;  Van  Horn  v.  Grand  Trunk  R.  Co.  18  U.  C.  Q.  B.  356v 

^Polly  V.  McCall/dl  Ala.  20-32. 


Chap.  XIX.]       EASEMENTS    ACQUIRED   BY    PRESCRIPTION.  429 

any  injury  to  the  property,  but  the  injury  results  from  the  gradual 
diminution  of  the  volume  of  water  flowing  in  the  stream,  which 
has  been  the  case  for  several  years,  while  the  dam  which  diverts 
the  water  remains  no  higher  and  the  ditches  which  let  the  water 
from  the  stream  and  return  it  thereto  are  unchanged,  and  the  di- 
verter  uses  less  water  than  formerly,  the  whole  action  and  woi-k  of 
the  diverter  is  a  continuance  only  of  that  which  was  done  on  the 
ground  originally,  the  water  continuing  to  be  used  for  the  same 
purpose  now  as  then,  and  the  time  of  the  prescription  must  date 
from  the  original  appropriation.' 

The  acts  by  which  a  right  by  prescription  is  sought  to  be  estab- 
lished must  be  such  as  to  operate  as  an  invasion  of  the  right  claimed 
to  such  an  extent  that  during  the  whole  period  of  use  the  party 
whose  estate  is  sought  to  be  charged  with  the  servitude  could  have 
maintained  an  action  therefor."  Right  to  maintain  what  is  strictly 
a  private  nuisance  may  be  acquired  by  prescription  for  the  statutory 
time  of  limitation  w^hich  bars  an  entry  upon  land — usually  twenty 
years.^  But  to  constitute  a  prescriptive  right  in  favor  of  a 
railroad  to  overflow  the  lands  of  another  by  maintaining  a  defec- 
tive bridge  upon  its  right  of  way,  it  is  not  enough  to  show  that 
the  bridge  has  been  maintained  in  the  same  manner  for  twenty 
years,  but  it  must  be  shown  that  there  has  been  a  lapse  of  twenty 
years  since  such  an  invasion  of  an  adjoining  proprietor's  right  as 
resulted  in  giving  him  a  cause  of  action." 

^Messinger's  Appeal,  109  Pa.  285,  1  Cent.  Rep.  423. 

^Boynton  v.  Longtey,  19  Nev.  69. 

^Slierlock  v.  Louisville,  JSF.  A.  &  C.  R.  Co.  115  Ind.  22,  14  West.  Rep.  843- 

Mitchell  V.  Parks,  26  Ind.  354;  Wood,  Nuis.  p.  763;  1  Hilliaid,  Torts  (4i1j 

ed.)  p.  653. 
*Sherlock  v.  Louisville,  N.  A.  &  0.  E.  Co.  115  Ind.  23,  14  West.  Rep.  843. 


CHAPTEE  XX. 

NEGLIGENTLY    PERMITTING    ESCAPE    OR    USE    OF    RUNNING 

WATER. 

Sec.  49.  Liability  for  Injury  from  Permitting  the  Escape  of  Water. 

Sec.  50.  Tlie  Right  to  Divert  Water  from  a  Stream. 

Sec.  oL  Riparian  Rights  in  Pacific  States. — Diversion. 

Sec.  52.  Use  of  Waters  to  Siq^ply  Cities. 

Section  ^^.—Liahility  for  Injury  from  Permitting 
the  Escape  of  Water. 

The  care  required  in  the  control  of  water  has  been  somewhat 
considered  ah-eady.'  "Where,  for  the  purpose  of  raising  the  water 
of  a  stream  above  its  natural  banks,  and  yet  preventing  its  over- 
flow, artificial  embankments  are  constructed,  which  answer  the  pur- 
pose perfectly,  if,  by  the  pressure  of  the  water  upon  the  natural 
banks  of  the  stream,  percolation  takes  place  so  as  to  drown  the  ad- 
joining lands  of  another,  an  action  will  lie  for  the  damage  occasioned 
thereby."^ 

Uncontradicted  testimony  that  by  reason  of  a  dam  the  water  in 
a  river  and  in  a  creek  which  emptied  into  it  after  running  through 
plaintiff's  lands  was  raised  and  percolated  over  plaintiff's  lands,, 
rendering  it  w'et  and  soggy  and  thereby  injuring  him,  is  sufficient, 
to  justify  a  recovery  of  damages  against  the  owners  of  the  dam.' 
But  the  fact  that  during  the  summer  months  an  odor  sometimes 
arises  from  an  excavation  used  as  an  ornamental,  fish  or  ice  pond, 
that  there  is  sometimes  a  green  scum  on  a  portion  of  its  surface^ 
that  the  bodies  of  dead  animals  have  been  taken  therefrom,  and 
that  when  raised  to  a  certain  height  water  leaches  or  soaks  into- 
neighboring  cellars, —  will  not  necessarily  bring  the  i:)ond  within 
the  condemnation  of  a  city  ordinance  requiring  excavations  to  be 
filled  up  and  the  water  drained  therefrom,  where  the  desired  ob- 
ject can  be  accomplished  by  requiring  the  pond  to  be  cleansed.* 

1  See  anU,  pp.  45,  55,  56,  59,  60,  151,  154,  255-261,  269-289,  361. 
^PixUij  V.  Clark,  35  N.  Y.  520;  Crittenden  v.  Wihon,  5  Cow.  165. 
^Athens  Mfg.  Co.  v.  Rucker,  80  Ga.  291. 
^Rochester  v.  Simpson,  57  Hun,  36. 


Chap.  XX.]       LIABILITY  FOR  INJURY  FROM  ESCAPE  OF  WATER.       431 

The  degree  of  care  which  a  party  is  bouivi  to  use  in  construct- 
ing a  dam  across  a  stream  is  in  proportion  to  the  extent  of  the  in- 
jury which  would  be  Hkely  to  result  to  a  third  person,  provided 
it  should  prove  insufficient.  It  is  not  enough  that  the  dam  is  suf- 
ficient to  resist  ordinary  floods ;  for  if  the  stream  is  occasionally 
subject  to  freshets,  those  must  likewise  be  guarded  against ;  and 
the  degree  of  care  required  in  snch  cases  must  be  that  which  a  dis- 
creet person  would  use  if  the  property  in  peril  were  his  own.  In 
New  York  v.  Bailey^  2  Denio,  433,  it  was  held  that  the  dam 
should  be  sufficient  to  resist,  not  merely  ordinary  freshets,  but  such 
extraordinary  floods  as  may  be  reasonably  anticipated.*  The  rule 
requires  provision  to  be  made  against  still  more  extraordinary 
streams  than  occur  in  usual  spring  and  fall  freshets ;  siTch  freshets 
as  are  known  to  occur  only  once  in  several  years,  and  at  no  regu- 
lar intervals." 

Where  the  situation  of  the  respective  properties  is  such  that  the 
improvement  made  upon  the  property  of  the  one  does  not  expose 
his  neighbor  to  injury  unless  the  party  making  the  improvement 
is  guilty  of  negligence,  the  occurrence  of  some  extraordinary  acci- 
dent causing  damage  will  not  render  the  owner  upon  whose  land 
the  improvement  has  been  made  liable.^ 

Ordinary  care  as  ai^plied  to  the  construction  and  maintenance  of 
a  dam  is  the  care  which  a  prudent  man  would  exercise,  consider- 
ing the  danger  which  must  always  attend  the  confining  of  water, 
and  which  must  anticipate  freshets  which  sometimes  occur,  and 
must  therefore  be  reasonably  expected.*  Yet  in  China  v.  Southwicky. 
12  Me.  238,  one  who  had  a  right  to  regulate  a  dam  at  the  point 
where  a  stream  flowed  from  a  pond,  and  who  thereby  increased 
the  height  of  the  water  in  the  pond,  was  held  not  liable  for  the 
destruction  of  a  bridge  caused  by  a  still  greater  height  of  water, 
resulting  from  continued  rains.  His  right  to  erect  the  dam  re- 
lieved him  from  the  remote  and  unforeseen  consequences  resulting 
from  the  storm,  no  high*  care  being  exacted  from  him  than  that 

'  See  also  Lapham  v.  Curtis,  5  Vt.  371. 

^Oray  v.  Harris,  107  Mass.  492. 

^Blyth  V.  Birmingham  Water-Works  Co.  11   E.xch.  781;   Uarrison  v.   Great 

Northern  R.  Co.  3  Uurl.  &  0.  231. 
*Orayv.  Harris,  107  Mass.  492;  Neio  York  v,  Bailey,  2  Denio,  433;  Wolf  yr. 

St.  Louis  Independent  Water  Co.  10  Cal.  oi4. 


432  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

of  ordinary  prudence  in  exercising  his  right  to  construct  the 
dam.' 

Every  owner  of  land  through  which  a  stream  of  water  flows  has 
presumptively  a  right  against  the  owners  of  land  below  him  to 
have  the  stream  flow  over  his  land  in  its  natural  channel  unob- 
structed. Such  a  right  is  infringed  by  the  construction  of  a  dam 
below,  that  flows  the  stream  back  upon  the  land  which  naturally 
it  would  leave.*  Thus  if  a  dam  or  obstructions  maintained  by  the 
owner  of  land  cause  back-water  to  flow  upon  land  situated  higher 
up  the  stream,  in  the  ordinary  stages  of  water  or  freshets  which 
are  to  be  anticipated,  then  such  dam  or  obstructions  would  be  illegal, 
and  the  owner  of  the  land  flooded  would  be  also  entitled  to  recover 
such  damages  as  arose  from  such  dam  or  obstructions  in  extraordi- 
nary freshets.' 

So  far  as  one  permanently  floods  the  land  of  another  there  is  a 
l^hysical  invasion  of  the  land  and  a  practical  ouster  of  the  posses- 
sion thereof ;  and  in  a  real  sense  such  land  is  taken  from  the  owner.* 
And  one  whose  lands  are  damaged  by  an  overflow  caused  by  the 
obstruction  of  a  watercourse  is  entitled  to  recover,  unless  a  grant 
be  shown  or  a  prescriptive  right  exist,  although  the  dams  producing 
such  injury  were  erected  before  he  had  ai\y  interest  in  the  prop- 
erty to  which  the  injury  was  done,  and  the  dams  had  not  since 
been  raised." 

Where  the  owner  of  land  on  a  navigable  river,  by  debris  from 
a  quarry,  practically  closes  the  main  channel  and  diverts  it  to  the 
further  side  of  an  island,  with  malicious  intent  to  deprive  the  ri- 
parian owner  below  of  the  use  of  the  stream  for  mill  purposes,  for 
which,  without  authority,  he  had  constructed  a  dam  across  the 
channel,  the  latter  is  entitled  to  no  damages  for  the  loss  of  the 
water-power  as  such,  but  is  entitled  to  recover  for  the  deprivation 

'  See  also  Hoffman  v.  Tuolumne  County  Water  Co.  10  Cal.  413;   Wolf  v.  St. 

Louis  Independent  Water  Co.   10  Cal.  541;  Todd  v.   Cochell,  17  Cal.  97; 

Everett  v.  Hydraulic  Flume  Tunnel  Co.  23  Cal.  225;  Lapham  v.  Curtis,  5 

Vt.  371;  Bailey  y.  New  York,  3  Hill,  531  •,  Livingston  v.  Adams,  8  Cow. 

175;  Pollett  v.  Lo7}g,  56  N.  Y.  200. 
^Seriver  v.  Smith,  100  N.  Y.  471,  1  Cent.  Rep.  763. 
mumphrey  v.  Irwin  (Pa.  Oct.  4,  1886)  4  Cent.  Rep.  685. 
*Pumpelly  v.  Green  Bay  &  M.  Canal  Co.  80  U.  S.  13  Wall.  166,  20  L.  ed. 

557;  Eaton  v.  Boston,  C.  &  31.  B.  Co.  51  N.  H.  504;  Story  v.  Aew  York 

El.  B.  Co.  90  N.  Y.  185. 
^Mississippi  &  T.  B.  Co.  v.  Archibald,  67  Miss.  38. 


Chap,  XX.]       LIABILITY  FOR  INJURY  FROM  ESCAPE  OF  WATER.       433 

of  convenient  access  to  tlie  river  for  tlie  purposes  of  navigation 
and  fishing,  or  for  domestic  or  other  proper  purposes.' 

Eiparian  proprietors  are  entitled  to  liave  sand  naturally  flowing 
in  the  stream  pass  down  unobstructed,  and  if  by  reason  of  the  con- 
struction of  a  dam  across  the  stream  sand  lodges  and  chokes  up 
the  stream,  thereby  overflowing  their  lands,  they  may  recover  dam- 
ages against  the  owner  of  the  dam ;  and  the  fact  that  the  sand 
reaches  the  stream  by  reason  of  the  cultivation  of  lands  lying  fur- 
ther up  its  course  is  immaterial."  So  if  the  dam  by  reason  of  im- 
perfect construction  accumulate  ice,  which  results  in  injury  to  the 
neighboring  land  in  spring  freshets,  the  special  injury  may  be 
recovered.' 

The  fact  that  annual  freshets  of  a  river  slightly  impede  the 
growth  of  hay  on  abutting  lands  will  not  relieve  from  liability  one 
who  erects  a  dam  in  such  a  manner  as  to  flood  said  lands,  thereby 
destroying  their  value  for  the  purposes  to  which  they  are  best 
adapted  and  for  which  they  were  purchased.''  In  an  action  for 
causing  the  overflow  of  lands,  evidence  that  the  land,  after  being 
flooded,  became  baked  and  broke  up  in  clods  and  chunks,  and  was 
foul  with  weeds,  is  proper  as  showing  the  effect  of  the  overflow.' 
An  allegation  in  pleading  that  land  was  damaged  by  "overflowing" 
was  held  established  by  proof  that  the  water  of  the  stream,  being 
set  back  by  the  dam  and  caused  to  stand  at  a  greater  depth  in  the 
bed  of  the  stream  by  reason  thereof,  percolated  through  the  earth 
so  as  to  rise  and  stand  therein  within  one  or  two  feet  of  the  sur- 
face." There  is  no  variance  between  an  allegation  in  a  complaint 
that  defendants  caused  the  waters  of  a  certain  river  to  flow  into  a 
certain  creek,  thereby  damaging  plaintiff,  etc.,  by  reason  of  the 
overflow,  and  proof  that  defendants  wrongfully  caused  the  waters 
of  such  river  to  flow  into  an  artificial  channel  constructed  twenty 
years  before  the  alleged  wrongful  act,  and  which  had  become  the 
channel  of  such  creek.' 

^Fulmer  v.  Williams,  122  Pa.  191,  1  L.  R.  A.  603. 

^Hines  v.  Jarrett,  26  S.  C.  480;  Schuylkill  Nav.  Co.  v.  McDonovgh,  33  Pa.  73. 
^Bell  V.  McClintock,  9  Watts,  119.     See  Coiples  v.  Eidder,  2i  N.  H.  364. 
*Stone  V.  Roscommon  Lumber  Co.  59  Mich.  24. 
^Noe  V.  Chicago,  B.  &  Q.  R.  Co.  76  Iowa,  360. 
^Pierce  Mill  Co.  v.  Koltermami,  26  Neb.  722. 
''Tucker  v.  Salem  Flouring  Mills  Co.  15  Or.  581. 
28 


4:3i  IMPOSED   DUTIES,  PERSONAL.  [Part  11. 

Farmers  and  others  residing  in  the  vicinity  of  lands  overflowed 
are  competent  to  testify  as  to  the  quantity  of  water  which  flowed 
throngli  certain  chaimels  in  times  of  freshet,  and  why  the  water 
was  liigher  on  one  side  of  a  raih'oad  embankment  than  it  was  on 
the  other,  after  the  performance  of  work  complained  of.*  Dam- 
ages to  property  by  the  overflow  of  water  are  properly  measured 
by  the  diminished  rental  value  during  the  continuance  of  the  nui- 
sance.'' But  an  action  on  the  case  for  flowing  land  will  not  lie 
against  a  former  owner  of  the  land  who  erected  a  dam,  and  built 
a  mill,  by  means  of  which  the  injury  is  done,  wliere  it  appears  that 
other  persons  are  in  possession  of  the  premises,  occupying  them  as 
their  own,  and  there  is  no  evidence  that  they  hold  as  the  tenants 
of  such  former  owner.  The  action  must  be  against  the  persons  in 
possession.^  In  Beswiok  v.  Cunden^  Cro.  Eliz.  402,  520,  it  was 
held  that  an  action  on  the  case  did  not  lie  for  a  nuisance  because 
the  plaintiff  might  have  his  remedy  by  an  assize  or  quod  jpermittat. 
That  was  an  action  on  the  case  for  that  the  defendant  erected  a 
dam  in  a  certain  river  whereby  it  surrounded  the  land  of  one  J.  S.. 
who  afterwards  enfeoffed  the  plaintiff  thereof;  to  this  declaration 
there  was  a  demurrer,  and  it  was  held  that  this  action  did  not  lie. 

Nor  will  express  authority  to  build  a  bridge  relieve  from  liability 
for  a  want  of  care  not  to  invade  the  rights  of  others.  Thus,  a  rail- 
road corporation,  although  authorized  by  law  to  construct  its  road 
across  a  stream,  is  liable  for  damage  done  to  lands  adjacent  there- 
to by  the  construction  of  a  bridge  which  causes  the  water  and  ice 
to  gorge  and  overflow  such  land ;  and  to  avoid  this  liability,  in  the 
selection  of  the  character  of  bridge  to  be  built,  due  regard  must 
be  had  to  the  rights  of  the  adjacent  land  owners,  as  well  as  to  the 
safety  of  the  public  who  may  travel  over  its  road,  or  who  may  re- 
quire the  use  of  the  same  for  the  transportation  of  property.* 
Nor  has  a  railroad  company  the  right  to  fill  up  trestle  work  away 
from  the  main  channel  of  the  river,  if  by  so  doing  the  overflow  of 
water  will  be  increased,  to  the  damage  of  land  owners  in  times  of 

^Noe  V.  CMcngo,  B.  &  Q.  R.  Co.  76  Iowa,  360. 

^Evfaula  y. Simmons,  86  Ala.  515. 

^Blunt  V.  Aikin,  15  Wend.  523. 

*McOlene(/han  v.  Omaha  &  R.  V.  R.  Co.  25  Neb.  523. 


Chap.  XX.]       LIABILITY  FOR  INJURY  FROM  ESCAPE  OF  WATER.       435 

freshet;'  but  a  railway  company  is  not  hable  for  damages  caused 
by  overflow  from  any  unprecedented  storm,  even  though  the  dam 
and  overflow  would  not  have  occurred  at  its  bridge  if  it  liad  left 
no  obstructions,  such  as  piling,  there,  unless  the  piling  would  havc^ 
caused  a  dam  and  overflow  from  an  ordinary  storm ;'  and  it  can- 
not be  held  liable  for  an  injury  or  loss  caused  by  others  diverting, 
by  the  construction  of  levees,  water  in  a  body  into  the  stream, 
which  had  not  received  it  before  the  erection  of  the  railroad 
bridge.'  Yet  a  corporation,  though  it  constructs  its  dam  upon  its 
own  land  under  authority  of  its  charter,  is  lial)le  for  damages- 
which  arise  from  its  intentional  act  in  discharo-ino-  throuijh  an  in- 
adequate  channel  a  large  body  of  water,  without  providing  a  suf- 
ficient outlet,  thereby  overflowing  adjacent  land.*  In  fact,  the 
backing  of  water  so  as  to  overflow  the  lands  of  an  individual,  or 
any  other  superinduced  addition  of  water,  if  done  under  statutes 
authorizing  it  for  the  public  benefit,  is  the  taking  of  private  prop- 
erty for  public  use  within  the  meaning  of  the  constitutional  pro- 
vision requiring  compensation  to  be  made  for  private  property 
taken  for  public  use.^ 

Although  a  person  whose  land  is  injured  by  the  wrongful  main- 
tenance of  a  dam  across  a  watercourse  running  through  it  is  not 
within  the  rule  that,  in  case  consequences  of  negligence  are  im- 
pending, whosoever  can  shun  them  by  ordinary  care  and  fails  to 
do  so  will  be  barred  from  recovery  of  the  resulting  damages,'  yet 
the  overflow  water  from  a  river  may  be  kept  off  fi'om  land  at  a 
distance  from  the  river  by  a  barrier  or  embankment,  although  this 
may  set  it  back  on  land  nearer  the  river,  if  the  owner  of  the  lat- 
ter will  not  co-operate  with  those  behind  him  in  erecting  a  levee 

^Noe  V.  Cliicago,  B.  &  Q,.  R.   Co.  76  Iowa,  360. 

« ^Coleman  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  36  Mo.  App.  476. 

*McKee  v.  Delaware  &  H.  Canal  Co.  53  Hun,  52;  Omaha  &  R.  V.  R.   Go.  v. 

Brown,  16  Neb.  IGl;  Union  Trust  Co.  v.  Cupjji/,  26  Kun.  754;  Little  Rock 

&  Ft.  8.  R.  Co.  V.  Chapman,  39  Aik.  463. 

^Pumpelly  v.  Green  Bay  &  M.  Canal  Co.  80  U.  S.  13  Wall.  166,  20  L.  ed. 
557;  Eaton  v.  Boston,  G.  &  M.  R.  Co.  51  N.  H.  504;  Grand  Rapids  Boom- 
ing Co.  V.  Jan-is,  30  Mich.  321;  Booker  v.  New  Haven  &  N.  Co.  14  Conn. 
146;  Rowe  v.  Granite  Bridge  Corp.  21  Pick.  344;  Nevins  v.  Peoria,  41  111. 
502,  510;  Pettigrew  v.  Evansnlle,  25  Wis.  223,  231,  232,  236;  Cooley,  Const. 
Lim.  542,  545;  Canal  Comrs.  v.  People,  5  Wend.  452;  Ston/  v.  Aew  York 
El.  R.  Co.  90  K  Y.  122,  159;  Re  New  York  El.  R.  Co.  36  Hun,  427. 

•Athens  Mfg.  Co.  v.  Rucker,  80  Ga.  291;  Wolf  v.  St.  Louis  Independent  Water 
Co.  10  Cal.  541. 


436  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

on  the  bank  to  protect  all  the  lands  from  such  overflow ;'  and  one 
is  not  liable  for  causing  an  overflow  of  another's  land  bj  the  erec- 
tion of  a  dam  of  sufficient  size  to  protect  his  own  land  from  the 
ill  effects  of  a  dam  erected  by  the  other  on  the  other  side  of  the 
creek.  It  would  be  error  to  qualify  an  instruction  to  that  effect 
by  adding  that  he  can  erect  such  dam  only  when,  by  the  exercise 
'of  reasonable  care,  it  can  be  done  without  injury  to  others.''  Nor 
will  au  injunction  lie  in  favor  of  one  riparian  proprietor  to  restrain 
the  opposite  proprietor  from  maintaining  and  using  a  dam  and 
canal  M^holly  on  the  latter's  side  of  the  middle  or  thread  of  the 
stream,  whereby  he  makes  a  reasonable  use  of  the  water  for  mill- 
ing purposes,  where  the  quantity  of  water  which  would  otherwise 
have  flowed  along  plaintiff's  bank  is  not  materially  diminished, 
and  plaintiff  is  in  no  manner  injured  by  the  diversion  f  and  one 
who  built  a  dam  on  the  line  of  a  highway  where  it  crossed  a  ra- 
vine, making  a  safe  and  suitable  crossing  by  a  causeway  composed 
of  logs,  brush,  stone  and  earth,  which  was  used  by  the  public  and 
for  a  time  maintained  and  repaired  by  the  highway  officers,  is  not 
chargeable  with  its  maintenance  and  repair,  or  lia])le  for  injuries 
occasioned  by  its  being  out  of  repair.^ 

Cahill  V.  Eastman,  18  Minn.  324,  recognizes  to  the  full  extent 
the  decision  in  Fletcher  v.  Bylands,  L.  R.  1  Exch.  265.  The  de- 
fendants were  held  liable  in  that  they  had  put  their  land  to  a  use 
which  necessarily  tended  to  injure  the  plaintiffs  in  their  rights  in 
the  property,  and  the  damage  the  plaintiffs  have  sustained  is  tlie 
direct  and  inmiediate  result  of  these  operations  on  their  own  land. 
The  plaintiffs,  on  and  after  January  8,  1870,  were  in  possession, 
and  the  owners,  of  the  leasehold  title  in  certain  mill  property  on 
Hennepin  Island,  which  island  divides  the  waters  of  the  Missis- 
sippi River  into  two  channels  at  the  falls  above  and  below  them, 
extending  about  one  thousand  feet  above  and  five  hundred  feet 
below.  The  bed  of  the  river  below  is  about  thirty  feet  lower 
than  the  bed  of  the  river  above  ;  a  stratum  of  limestone  about  ten 
feet  in  thickness  forms  the  bed  of  the  river  above  the  falls  and 
extends  across  the  island  and  rests  upon  hard  sand  to  the  depth  of 

^McDanielv.  Gummings,  83  Cal.  515,  8  L.  R.  A.  575. 
^Wiihelm  v.  BurUyson,  106  N.  C.  381. 
'^Pinney  v.  Luce^Wmn.  Oct.  7,  1890)  46  N".  W.  Rep.  561. 
*  Wallace  v.  Evans,  43  Kan.  509,  8  L.  R.  A.  52. 


Chap.  XX.]       LIABILITY  FOR  INJURY  FROM  ESCAPE  OF  WATER.        437 

the  bed  of  the  river  below  the  falls.  Prior  to  October  4,  1860, 
the  defendants  dug  a  tunnel  six  feet  high  from  the  lower  end  of 
Hennepin  Island  and  under  the  entire  length  of  said  island  through 
the  hard  sand  under  said  stratum  of  limestone,  and  at  a  depth  of 
more  than  thirty  feet  below  the  level  of  the  bed  of  the  river 
above  the  falls.  Just  opposite  the  plaintiifs'  mill,  it  was  dug 
within  75  feet  of  the  east  shore,  which  was  a  steep  perpendicular 
bank,  down  to  the  bed  of  the  river  below  the  falls,  and  as  low  as 
the  bottom  of  the  tunnel.  On  October  4tli,  the  waters  of  tlie 
river  burst  into  said  tunnel  at  its  upper  end,  and  rushed  through 
it  in  great  volume,  rending  the  rocks  and  tearing  away  the  ground 
to  a  considerable  extent  on  the  deep  sides  of  its  entire  length.  There- 
after the  flow  of  the  water  through  it  was  in  most  parts  stopped  ; 
but  in  April,  1870,  during  the  ordinary  spring  freshet,  the  water 
again  burst  into  the  tunnel,  filling  it,  and  rushing  through  it  with 
such  volume  and  force  that  it  washed  out  and  undermined  the 
lower  end  of  the  island  between  the  tunnel  and  the  east  shore  on 
which  plaintiff  mill  stood,  from  the  mouth  of  the  tunnel  to 
plaintiffs'  mill,  and  washed  out  and  undermined  the  island  on 
which  plaintiffs  had  a  right  of  way  and  on  which  their  mill  stood, 
to  the  injury  of  the  plaintiffs'  warehouse,  mill  and  machinery. 
The  case  does  not  disclose  the  object  of  the  work.  The  defend- 
ants, however,  dug  the  tunnel  for  their  own  purposes,  whatever 
these  were,  and,  nothing  appearing  to  the  contrary,  it  must  be 
taken  of  course  that  they  did  so  with  the  license  of  the  owners  of 
the  soil.  The  complaint  describes  the  excavation  and  alleges  that 
it  was  done  so  negligently  that  the  water  burst  in.  The  answer 
denies  that  the  work  \\;as  done  negligently.  As  the  case  discloses 
only  the  bare  fact  of  the  excavation  of  the  tunnel,  the  strongest 
way  in  which  this  can  be  taken  for  defendants  is  that  the  most 
careful  and  skillful  person  would  have  dug  just  such  a  tunnel  be- 
lieving it  to  be  safe.  If,  nevertheless,  the  water  burst  in,  this 
cannot  be  said  to  be  the  result  of  some  cause  unshown.  The 
pleadings  disclose  the  cause,  viz.,  the  superior  force  of  the  water 
overcoming  the  resistance  which  the  roof  of  the  tunnel,  as  de- 
fendants had  constructed  it,  opposed  to  it.  Then  it  may  be  said, 
with  entire  correctness,  that  the  tunnel  itself  brought  the  water 
into  it.     They  believed   that  they  had  left  a  power  sufficient  to 


438  ,   IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

keep  out  the  water.  This  may  take  away  any  moral  blame  from 
them,  but  it  cannot  affect  their  legal  responsibility,  if  they  are 
legally  responsible.'  For  if  the  water,  by  its  own  natural  force, 
will  break  through  the  barrier  thus  left  to  keep  it  out,  into  the 
tunnel,  that  would  be  just  as  much  a  direct  and  inevitable  result  of 
such  an  excavation  as  of  a  surface  excavation,  and,  once  in,  the 
tunnel  guided  the  water  to  a  point  where  it  undermined  and  de- 
stroyed the  plaintiffs'  property.  The  excavation  of  the  tunnel 
necessarily  tended  to  cause  this  injury.  The  defendants  had  no 
idea  but  that  the  roof  of  their  tunnel  would  keep  out  water.  The 
act  which  caused  the  mischief,  practically,  was  as  voluntary  on 
their  part  as  that  of  the  defendants  in  Fletcher  v.  Rylands.  They 
brought  water  to  a  shaft  that  led  to  plaintiffs'  property ;  these 
defendants  brought  a  shaft  that  led  from  plaintiffs'  premises  to  the 
water.  The  court  admit  that  such  a  case  as  this  comes  rather 
under  the  head  of  nuisance,  citing  from  Blackstone:  "As  to  nui- 
sance to  one's  lands,  if  one  erects  a  smelting  house  for  lead  so  near 
the  land  of  another  that  the  vapor  and  smoke  kill  his  corn  and 
grain  and  damage  his  cattle  therein,  this  is  held  to  be  a  nuisance; 
and,  by  consequence,  it  follows  that  if  one  does  any  other  act  in 
itself  lawful,  which  yet,  being  done  in  that  place,  necessarily  tends 
to  damage  another's  property,  it  is  a  nuisance  ;  for  it  is  incumbent 
on  him  to  find  some  other  place  to  do  that  act,  where  it  would  be 
less  offensive."  *  That  is,  as  the  court  says,  it  is  his  duty  not  to 
make  such  use  of  his  own  property  as  will  injure  his  neighbors  ; 
the  maxim  sic  utere  tuo  ut  alienum  non  loedas  applies,  and  he  is 
liable,  at  all  events,  for  the  consequences,  if  he  violates  that  duty. 
The  case  is  also  rested  upon  what  is  called  the  natural  right  of 
support  from  neighboring  soil.' 

The  degree  of  care  and  foresight  which  it  is  necessary  to  use, 
where  water  is  attempted  to  be  confined,  must  always  be  in  pro- 
portion to  the  nature  and  extent  of  the  injury  which  would  be 
likely  to  result  from  the  occurrence  which  is  to  be  anticipated  and 
guarded  against,  and  it  should  be  that  care  and  prudence  which  a 
discreet  and  cautious  individual  would  or  ought  to  use  if  the  whole 

^Smith  V.  Fletcher,  L.  R.  9  Exch.  64. 
2  2  Bl.  Com.  bk.  3,  chap.  13,  p.  218. 
*See  Rowhotham  v.  WiUon,  8  El.  &  Bl.  136;  Humphries  v.  Brogden,  12  Q.  B. 

738,  743. 


Chap.  XX.]       LIABILITY  FOK  INJUKY  FROM  ESCAPE  OF  WATEK.       439 

risk  and  loss  were  to  be  his  own  exclusively.  In  Bailey  v.  Keio 
York,  3  Hill,  531 ;  Keic  York  v.  Bailey,  2  Denio,  433,  the  dam 
was  built  with  an  insulhcient  water  way ;  it  was  not  such  a  one 
as  ought  to  have  been  constructed  and  maintained  for  the  purpose 
for  the  safety  of  those  whose  property  would  probabl}'  be  injured 
by  the  breaking  of  the  dam.  It  was  therefore  held  to  have  been 
negligently  built.  The  probable,  if  not  the  necessary,  consequence 
of  the  carrying  off  of  the  site  of  the  dam  by  a  flood  would  be,  not 
only  to  sweep  away  the  buildings  and  erections  of  all  the  others' 
property  upon  the  Croton  below  such  dam,  but  also  to  endanger 
the  lives  of  such  owners  and  their  families.  The  dam  should  there- 
fore have  been  constructed  in  such  a  manner  as  to  arrest  such  ex- 
traordinary floods  as  might  have  been  reasonably  anticipated  to 
occasionally  occur. 

It  has  been  stated,  as  a  matter  of  public  policy,  that  it  is  better 
that  one  man  should  surrender  a  particular  use  of  his  land  than 
that  another  should  be  deprived  of  the  beneficial  use  of  his  prop- 
erty altogether.* 

In  CahiU  v.  Eastman,  18  Minn.  324,  the  court,  in  referring  to 
Rockwood  v.  Wilson,  11  Cush.  221,  which  holds  that  nothing  can 
be  better  settled  than  that  if  one  did  a  lawful  act  on  his  own  prem- 
ises, he  cannot  be  held  responsible  for  injuries  that  may  result  from 
it,  unless  it  was  so  done  as  to  constitute  actionable  negligence, 
remarked :  "  It  is  to  be  noted  that  what  may  result  is  not  the 
same  thing  as  what  must  result  from  a  given  act ; "  and,  as  the 
court  distinguishes  between  such  an  act  as  that  of  which  it  was 
speaking  and  a  private  nuisance  which  it  terms  an  unlawful  act, 
it  may  have  had  Blackstone's  definition  of  such  nuisance  in  mind. 
But  if  it  intended  the  statement  to  apply  to  all  cases  the  necessary 
result  of  acts,  in  themselves  lawful,  it  is  too  broad ;  nor  do  the 
cases  which  it  cites  sustain  it  in  so  holding. 

The  law  in  this  country  is  settled  that  if  one  builds  a  dam  upon 
his  own  premises,  and  thus  holds  back  and  accumulates  the  water 
for  his  benefit  and  confines  the  water  upon  his  premises  in  a  res- 
ervoir, in  case  the  dam  or  the  banks  of  the  reservoir  give  wav,  and 
the  lands  of  a  neighbor  are  thus  flooded,  he  is  not  liable  for  dam- 

^Eay  V.  CoJwes  Co.  2  N.  Y.  159. 


440  IMPOSED    DUTIES,  PERSONAL.  [Part  II. 

ages,  without  proof  of  some  fault  or  negligence  on  his  part.'  The 
true  rule  as  recognized  in  this  country  is  laid  down  in  the  case  of 
Livingston  v.  Adams,  8  Cow.  175,  as  follows :  "  Where  one  builds 
a  mill  upon  the  proper  model,  and  the  work  is  well  and  substan- 
tially done,  he  is  not  liable  for  any  action,  although  it  break  away, 
in  consequence  of  which  his  neighbor's  dam  and  mill  below  are 
destroyed.  Negligence  should  be  shown  in  order  to  make  him 
liable."'  But  where  water  is  accumulated  wrongfully,  the  party 
so  doing,  in  letting  it  out,  must  do  so  at  his  peril.' 

Evidence  tending  to  show  that  damages  were  caused  to  plaintiff's 
mining  claim  by  the  breaking  of  defendant's  wooden  dam  and  res- 
ervoir, from  its  poor  construction  and  its  rotten  and  decayed  con- 
dition, and  the  plaintiff's  want  of  attention  to  the  reservoir,  will 
support  a  verdict,  though  defendant's  evidence  may  tend  to  prove 
the  break  to  have  been  in  the  native  ear  that  one  end  of  the  dam. 
The  City  of  New  York  was  held  liable  for  injuries  occasioned  by 
the  negligent  and  unskillful  construction  of  a  dam  to  aid  in  sup. 
plying  the  city  with  fresh  water,  although  the  commissioners  who 
contracted  for  its  construction  were  appointed  by  the  State,  they 
being  held  to  be  agents  of  the  corporation.' 

Section  50.— The   Right   to   Divert    Water  from   ou 

Stream. 

It  is  a  well-recognized  rule  that  a  riparian  proprietor  may,  jure 
naturae,,  divert  water  from  a  stream  for  domestic  purposes,  and, 
if  there  be  an  excess  after  its  use  for  these  purposes  by  all  en- 
titled, he  may  use  his  proportion  for  the  irrigation  of  his  land, 
having  due  regard  to  the  conditions  and  circumstances  of  other 

^Pixley  V.  Clark,  35  N.  Y.  520;  Sheldon  v.  SJierman,  43  N,  Y.  484;  Everett  v. 
Hydrmdic  Flume  Tnnnel  Co.  23  Cal.  225;  Todd  v.  CocJiell,  17  Cal.  97; 
Shreioshury  v.  Smith,  12  Cush.  177;  Lapham  v.  Curtis,  5  Vt.  371;  Living- 
ston V.  Adams,  8  Cow.  175;  Bailey  v.  New  York,  3  Hill,  531. 

*See  Hoffman  v.  Tuolumne  County  Water  Co.  10  Cal.  413;  Louisville  &  P 
Canal  Co.  v.  Murphy,  9  Bush,  533;  Parrott  v.  Barney,  1  Bawy.  443;  Phila. 
delphia  &  R.  B.  Co.  v.  Yeiser,  8  Pa.  374;  Gillett  v.  Johnson,  30  Conn.  180, 

"Frye  v.  Moor,  53  Me.  583;  Stevens  v.  Kelley,  78  Me.  445,  8  New  Eng.  Rep. 
232. 

*  Wiedekind  v.  Tuolumne  County  Water  Co.  88  Cal.  198. 

''Bailey  v.  New  York,  3  Hill,  531,  cited  in  Platz  v.  CoJwes,  89  N.  T.  234,  and 
Donovan  v.  McAlpin,  85  N.  Y.  188;  explained  in  People  v.  Civil  Service 
Supervisory  and  Examining  Boards,  8  How.  Pr.  N.  S.  43,  44,  47. 


Chap.  XX.j       EIGHT    TO    DIVEKT    WATER    FROM    STREAM.  441 

proprietors  of  the  stream;  but  if  one  divert  the  water  of  a  stream 
by  artificial  means,  he  is  bound  to  take  care  o*^  the  same  until  it 
returns  to  its  natural  bed.'  He  should  not  so  divert  it  as  to  de- 
stroy or  materially  diminish  or  impair  the  application  of  the  water 
by  other  proprietors.^  What  will  constitute  such  reasonable  use 
has  been  heretofore  somewhat  considered.' 

The  general  rule  is  often  stated  to  be  that  every  riparian  pro- 
prietor has  an  equal  right  to  have  the  stream  flow  through  his 
lands  in  its  natural  state,  without  material  diminution  in  quantity 
or  alteration  in  qnality.  But  this  rule  is  qualified  by  the  limita- 
tion, now  well  recognized,  that  each  of  such  proprietors  is  entitled 
to  a  reasonable  use  of  the  water  for  domestic*  agricultural  and 
manufacturing  purposes;  or,  to  state  the  rule  in  the  words  of 
Shaw,  Gh.  </.,  in  Gary  v.  Daniels,  8  Met.  477,  41  Am.  Dec.  532: 
"  Each  proprietor  is  entitled  to  such  use  of  the  stream,  so  far  as  it 
is  reasonable,  conformable  to  the  usages  and  wants  of  the  com- 
munity, and  having  regard  to  the  progress  of  improvement  in  h)'- 
draulic  works,  and  not  inconsistent  with  a  like  reasonable  use  by 
the  other  proprietors  of  land  on  the  same  stream  above  and  below." ' 

There  is  no  principle  of  law  better  recognized  than  that  eveiy 
riparian  owner  of  lands,  through  which  streams  of  water  flow,  has 
a  right  to  the  reasonable  use  of  the  running  water,  which  is  a  pri- 
vate right  of  property.  The  right  is  one  annexed  and  incident  to 
the  freehold,  being  a  real  or  corporeal  hereditament,  in  the  nature 
of  an  easement,  and  must  be  enjoyed  with  reference  to  the  similar 
rights  of  other  riparian  proprietors.     It  is  therefore  a  qualified, 

^Baker  v.  Broion,  55  Tex.  377;  Tucker  v.  Salem  Flounng  Mills  Co.  15  Or.  581. 

MVashb.  Easem.  240;  Miner  v.  Gilmour,  12  Moore,  P.  C.  155;  Elliott  v. 
Fitchburg  R.  Co.  10  Cush.  191;  Embrey  v.  Owen,  G  Excb.  353. 

^^eeante,  pp.  409-411. 

*The  right  of  the  land  owner  to  divert  water  for  domestic  purposes  will  be 
protected.     Messinger's  Appeal,  109  Pa.  285,  1  Cent.  Rep.  424. 

•This  is  exhavistively  discussed  in  the  foliowina:  authorities:  Stein  v.  Bur- 
den, 29  Ala.  127;  Burden  v.  Stein,  27  Ala.  104;  Stein  v.  Burden,  24  Ahi. 
130;  Davis  v.  OetcMl,  50  Me.  602,  79  Am.  Dec.  636,  and  note.  (538-045; 
Uumont  V.  Kellogg,  29  Mich.  420;  Elliot  v.  Fiicliburq  R.  Co.  10  Cush.  191; 
Croaker  y.  Bragg,  10  Wend.  260;  Gould,  Waters,  §^  213-215.  The  u.se 
for  domestic  purposes  includes  household  uses,  cooking,  washing,  clean- 
ing and  supplying  a  reasonable  number  of  domestic  animals  (  Uliion  Mill 
&  Min.  Co.  V.  Ferris,  2  Sawy.  176;  Attorney-Oeneral  v.  Great  Eastern  R. 
Co.  23  L.  T.  N.  S.  344),  and  washing  carriages  (Wilts  &B.  Canal  &N.  Co. 
V,  Sicindon  Waterworks  Co.  L.  R.  9  Ch.  457);  and  brewing  comes  within 
the  use  also.  Elliot  v.  Fifchburg  R.  Co.  10  Cush.  195;  (Jarwood  v.  Atic 
York  Cent.  &  H.  R.  R.  Co.  83  N.  Y.  400. 


44:2  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

and  not  an  absolute,  right  of  property.'  He  ma}^,  to  a  reasonable 
extent,  jure  natuvcB,  use  or  divert  the  water  from  a  stream  for  do- 
mestic purposes,  and  for  the  irrigation  of  his  land." 

In  1832,  the  Supreme  Court  of  Pennsylvania  said  in  Howell  v. 
3rCoy,  3  Rawle,  269:  "Each  riparian  owner  has  a  right  to  a 
reasonable  use  of  the  stream.  Nor  are  we  to  be  understood  as 
saying  that  there  can  be  no  diminution  or  alteration  whatever,  as 
that  would  be  denying  a  valuable  use  of  the  water."' 

The  common  law  allows  every  riparian  owner  to  divert  the 
stream  for  purposes  of  irrigation  or  power,  subject  only  to  return 
the  projjer  proportion  to  its  natural  channel  on  his  own  ground.' 

A  riparian  owner,  it  was  formerly  said,  had  the  right  to  diminish 
the  quantity  of  water,  by  spreading  it  upon  his  land  to  manure 
and  enrich  it  and  make  profit,  providing  he  did  it  prudently  and 
did  not  deprive  the  owners  below  him  of  the  surplus." 

A  man  owning  a  close  on  an  ancient  brook  could  then  lawfully 
use  the  water  thereof  for  the  purpose  of  husbandry,  as  watering 
his  cattle  and  irrigating  the  close;  and  he  could  do  this  either  by 
dipping  water  from  the  brook  and  pouring  it  upon  his  land  or  by 
making  small  sluices  for  the  same  purpose ;  and  if  the  owner  of 
the  close  below  was  damaged  thereby  it  was  dammim,  absque  in- 
juria.^ l^ow  he  must  use  it  in  irrigating  his  land  in  such  a  way 
as  to  do  the  least  possible  injury  to  his  neighbor  who  has  the  same 
right.  He  must  not  use  it,  however,  for  agricultural  or  manufac- 
turing purposes,  if  thereby  he  deprive  his  neighbor  of  the  ordinary 
use.'    All  that  the  law  requires  of  the  party  by  or  over  whose  land 

^Gardner  v.  Newburgh,  2  Johns.  Ch.  163,  1  N.  Y.  Ch.  L.  ed.  332.  7  Am. 
Dec.  536,  and  note,  531-534;  Ang.  Watercourses,  §  5;  Tiedeman,  Real 
Prop.  §  614;  Wadsworih  v.  Tillotson,  15  Conn.  366;"  Boone,  Real  Prop. 
§  141.' 

^Messenger's  Appeal,  109  Pa.  285,  1  Cent.  Rep.  423;  Leaj-ned  v.  Tangeman, 
65  Cal.  334. 

^Kauffman  v.  Oriesemer,  26  Pa.  407;  3  Kent,  Com.  440,  441;  Emhrey  v. 
Owen,  6  Exch.  3o3;  Farrell  v.  Eichards,  30  N.  J.  Eq.  511;  Bnker  v. 
Brown,  55  Tex.  377;  Miner  v.  Oilmour,  12  Moore,  P.  C.  131;  Tyler  v. 
Wilkinson,  4  Mason,  397. 

^Perkins  v.  Dow,  1  Root,  535,  decided  in  Connecticut  in  1793.  This  exclu- 
sive right  is  now  restricted  to  wants  of  the  family  and  of  stock.  Union, 
Mill  &  Min.  Co.  v.  Ferris,  2  Sawy.  176;  Evans  v.  MerriweatJier,  4  111.  493; 
Learned  v.  Tangeman,  65  Cal.  334;  Arnold  v.  Foot,  12  Wend.  330. 

^Watson  V.  Alden,  8  Mass.  136. 

^Lux  V.  Haggin,  69  Cal.  355;  Arnolds.  Foot,  12  Wend.  330;  Elliot  v.  Fitchburg 
E.Go.  lOCush.  Id3;  Farrell y.  Bichaj'ds,  30  l>i.  J.  Eq.  511;  Jones  v.  Adams.ll 


Ohap.  XX.J         KIPARIAN   KIGUT5    IN    PACIFIC    STATES.  443 

the  stream  passes  is  that  he  should  use  the  water  in  a  reaponal)le 
manner,  and  so  as  not  to  destroy  or  render  useless,  or  materially 
diminish  or  affect,  tlie  application  of  the  water,  by  the  proprietors 
below  on  the  stream.' 

Briefly  stated,  the  rule  as  to  running  surface  water  is  that  the 
owner  can  appropriate  it  to  his  own  use,  but  eaimot  so  divert  it  as 
to  prevent  its  use  hy  those  below  him ;  and  even  where  the  water 
is  running  under  ground,  if  it  flows  in  a  natural  channel  known 
and  ascertained  by  those  deriving  its  benefits,  it  cannot  be  diverted 
to  the  injury  of  riparian  proprietors.^ 

A  provision  in  a  canal  company's  charter,  that  it  may  use  wa- 
ters of  a  certain  stream  for  purposes  of  irrigation,  gives  it  no  right, 
of  itself,  to  appropriate  the  waters  of  the  stream  without  license 
from  the  riparian  owner,  or  exercise  of  the  power  of  eminent  do- 
main." 

Section  ^\.— Riparian   Rights   in  Pacific   States.— 

Diversion. 

In  States  where  the  common  law  has  not  been  adopted  by  leg- 
islative enactment,  courts  have  proceeded  upon  the  hypothesis  of 
its  adoption,  subject  always  to  its  applicability  to  the  locality.* 
From  the  authorities  it  seems  the  applicability  of  the  common-law 

Nev. 84;  Colhurnyr.  RicJiards,  13 Mass.  420;  Blanchardv.  Baker,  8  Me.  253; 
Anthony  v.  Lapham,  5  Pick.  17o.  See  also,  to  the  same  effect.  Wddsworth  v. 
Tillotson,  15  Conn.  366,  89  Am.  Dec.  391,  note;  Neichnll  v.  Ireson,  8  Cush. 
595;  Parker  v.  OriHwold,  17  Conn.  300;  Oillett  v.  Johnson,  30  Conn.  180; 
Ilardiny  v.  Stamford  Water  Co.  41  Conn,  92;  Cooky.  Hull,  8  Pick.  269; 
Gary  V.  Danielt,  5  Met.  286;  Qreenslade  v.  Hallidny,  6  Binir.  379;  Gard- 
ner V.  NeiPhiirgh,  2  Johns.  Ch.  162,  1  K  Y.  Ch.  L.  ed.  332;  7  Am.  Dec. 
532,  editor's  note,  citing  Snow  v.  Parsons,  28  Vt.  459;  Chasemore  v.  Rich- 
ards, 2  Hurl.  &  N.  190;  Hayes  v.  Waldron,  44  N.  H.  580;  Sprincifield  v. 
Harris,  4  Allen,  494;  Davis  v.  Oetchell,  50  Me.  602;  Sampson  v.  Hoddinott, 
1  C.  B.  N.  S.  590;  Gould  v.  Boston  Duck  Co.  13  Gray.  442;  Hall  v.  Swift, 
6  Scott,  167;  Pitts  v.  Lancaster  Mills,  13  Met.  156;  Pai7ie  v.  Woods,  108 
Mass.  160,  173;  Blessing  v.  Blair,  45  Ind.  546;  Union  Mill  &  Min.  Co.  v. 
Ferris,  2  Sawy.  176;  Miller  v.  Miller,  9  Pa.  74:  Fleming  v.  Z)(im,  37  Tex. 
173;  Ferrea  v.  Knipe,  28  Cal.  348;  Stein  v.  Burden,  29  Ala.  127. 
» 8  Kent,  Com.  439;  Wadstcoi-th  v.  Tilhtson,  15  Conn.  366.  39  Am.  Dec.  396; 
Miller  v.  Miller,  9  Pa.  77;  Elliot  v,  Fitchburg  R.  Co.  10  Cush.  194. 

^Redman  v.  Forman,  83  Ky.  215. 

^Mud  Creek  I.  A.  &  Mfg.  Co.  v.  ViHan,  74  Tex.  170. 

■*Stout  V.  Keyes,  2  Doug.  (Mich.)  184;  Lormany.  Bemon,  8  Mich.  18;  M<rr- 
ruv.  Venderen,  1  U.  S.  1  Dall.  67,  1  L.  ed.  40;  Report  of  the  Judges.  3 
Binn.  595;  Sheioel  v.  Fell,  3  Yeates,  21;  Flanagan  v.  PhtUuklphia,  42  Pa. 
219;  State  v.  Cawood,  2  Stew.  (Ala.)  360;  Inge  v.  Murphy,  10  Ala.  885. 


444  IMPOSED  DUTIES,  PERSONAL.  [Part  II, 

rule  to  the  plijsical  cliaracteristics  of  the  State  should  be  consid- 
ered. Its  inapplicability  to  the  Pacific  States,  as  shown  in  Atchi- 
son, V.  Peterson,  87  U.  S.  20  Wall.  510,  22  L.  ed.  415,  applies 
forcibly,  it  is  said  by  the  Supreme  Court  of  that  State,  to  the  State 
of  Xevada.'  There  the  soil  is  arid  and  unfit  for  cultivation,  un- 
less irrigated  by  the  waters  of  running  streams.  The  general 
surface  of  the  State  is  table-land,  traversed  by  parallel  mountain 
ranges.  The  great  plains  of  the  State  afford  natural  advantages- 
for  conducting  water,  and  lands  otherwise  waste  and  valueless  be- 
come productive  by  artificial  irrigation.  The  condition  of  the- 
country  and  the  necessities  of  the  situation  impelled  settlers  upon 
the  public  lancjs  to  resort  to  the  diversion  and  use  of  waters.  This- 
fact  of  itself  is  a  striking  illustration  and  conclusive  evidence  of 
the  inapplicability  of  the  common-law  rule.  The  system  whicb 
the  necessities  of  the  people  established  was  recognized  and  con- 
firmed by  the  legislation  of  Congress:  Jirst,  by  the  Act  of  July 
26,  1866,  which  declares  in  its  ninth  section  "that  whenever,  by 
prioi'ity  of  possession,  rights  to  the  use  of  waters,  for  mining,  ag- 
ricultural, manufacturing  or  other  purposes,  have  vested  and  ac- 
crued and  the  same  are  recognized  and  acknowledged  by  the  local 
customs,  laws  and  decisions  of  courts,  the  possessors  and  owners 
of  such  vested  rights  shall  be  maintained  and  protected  in  the 
same," — the  title  from  the  United  States,  until  the  passage  of  this 
Act,  carried  riparian  rights  in  all  non-navigable  streams,  notwith- 
standing all  prior  appropriations,  or  use  of  easements,  however 
long  continued;''  and,  second,  by  the  Desert  Land  Act,  which 
encourages  the  appropriation  and  use  of  water  upon  such  of  the 
public  lands  as  will  not,  without  irrigation,  produce  an  agricul- 
tural crop,  by  authorizing  the  sale  of  a  greater  amount  of  such 
land  than  the  purchaser  could  otherwise  acquire,  upon  proof  of 
his  having  conducted  water  upon  it  for  the  purpose  of  irrigation. 
This  Act  applies  only  to  the  Pacific  coast  States  and  Territories.* 
The  legislation  of  the  State,  also,  has  encouraged  the  diversion  of 
water  by  an  Act  approved  March  3,  1866,  the  general  object  of 

^Reduction  Works  v.  Stevenson,  20  Nev.  269,  4  L.  R.  A.  60. 

•^Van  Sickle  v.  Uaines,  7  Nev,  249;  Gibson  v.  Chouteau,  80  U.  S.  13  Wall.  93, 

20  L.  ed.  534;  Union  Mill  &  Min.    Co.  v.  Ferris,  2    Sawy.  176;    Tyler  v. 

^Yilkinson,  4  Mason,  397;  Pope  v.  Kinman,  54  Cal.  3. 

SU.  S.  Slat.  1877,  p.  377. 


Chap.  XX.]         RIPARIAN    RIGHTS    IN    PACIFIC    STAT?:S.  445 

■u'liich  is  expressed  in  its  title,  as  follows:  "An  xVct  to  Allow  Anv 
Person  or  Persons  to  Divert  the  Waters  of  Any  River  or  Stream, 
and  Run  the  Same  throu<i;h  anv  Ditch  or  Flume,  and  to  Provide 
for  the  Rii^ht  of  Way  through  the  Lands  of  Others.'" 

Under  the  Acts  of  Congress  of  July  26,  1S66  (14  Stat,  at  L. 
chap.  2,^3),  and  July  9,  1870,  §  17  (16  Stat,  at  L.  chap.  233), 
the  riparian  rights  of  a  homestead  claimant  in  a  creek  run- 
ning over  public  lands  are  subordinate  to  a  prior  appropriation 
of  its  water  bv  another."  U.  S.  Rev.  Stat.,  8  2339,  as  to  ricrhts 
to  the  use  of  water,  was  rather  a  voluntary  recognition  of  a 
pre-existing  right  of  possession,  constituting  a  valid  claim  to  its 
continued  use,  than  the  establishment  of  a  new  one.'  The  doc- 
trine of  prior  appropriation,  under  the  Act  of  Congress  of  1856, 
applies  to  the  public  lands  of  the  United  States.* 

Persons  who  build  an  irrigation  ditch  upon  the  pul)lic  land  of 
the  United  States  become  the  owners  thereof  and  of  the  right  to 
use  the  water  first  appropriated  thereby,  so  long  as  they  use  the 
same  for  irrigating  purposes,  and  to  the  extent  of  such  appropria- 
tion; but  when  such  ditch  is  enlarged  by  others,  the  original  own- 
ers not  objecting,  and  its  capacity  increased,  the  parties  so  enlarg- 
ing the  ditch  become  owners  therein  and  in  the  water  appropri- 
ated thereby,  without  any  conveyance  from  the  original  owners.' 
The  extent  of  the  prior  appropriation  was  measured  by  the  capac- 
ity of  the  ditch  used.'  There  was  no  requirement  by  custom  that 
surplus  water  should  be  returned  to  the  stream.'  And  subsequent 
appropriators  of  surplus  water  were  liable  to  be  deprived  of  its 
use  by  the  former  appropriators,  unless  they  had  relinquished  it 
in  some  distinct  manner.*  The  only  legal  appropriation  that 
could  be  made  of  water,  or  that  could  be  authorized  by  the  Letns- 
lature  of  the  Territory,  was  one  for  some  beneficial  jjurposu  upon 

'  Nev.  Gen.  Stat.  g§  362-365. 

^South  Tuba  Water  &  Min.  Co.  v.  Rosa,  80  Cal.  333. 

^Sturr  V.  Beck,  133  U.  S.  541,  33  L.  ed.  761. 

*Curti8  V.  La  Grande  Water  Co.  (Or.  :March  26,  1890)  10  L.  R.  A.  484. 

^Lehi  Irrigation  Co.  v.  Moyle,  4  Utah,  327. 

^Caruthers  v.  Pemberton,  1  Mont.  111. 

''Butte  Canal  cfc  D.  Co.  v.  Vaughn,  11  Cal.  143;  Kidd  v.  Laird,  15  Cal.  161; 

Dalton  V.  Bowker,  8   Nev.  190;  Atchison  v.   Peterson,  87   U   S   20  iVall' 

507,  22  L.  ed.  414;  Barnes  v.  Sabron,  10  Nev.  217. 
^Wooiman  v.  Oarringer,  1  Mont.  535. 


446  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

the  premises  occupied  by  the  appropriator.  It  could  not  be  held 
merely  for  future  sale.'  These  acquired  rights  were  subject  to- 
adverse  title  acquired  under  Statutes  of  Limitation,"  or  to  be  con- 
vej'ed  by  deed,  or  released  by  instrument  insufficient  to  transfer 
title.^  Tiie  appropriator  was  entitled,  as  against  subsequent 
claimants,  to  receive  the  water  in  a  condition,  fit  for  the  use  in- 
tended and  in  the  quantity  originally  taken  and  needed.''  "Where 
rights  to  water  were  acquired  by  appropriation  after  the  passage 
of  the  Act  of  Congress  of  1866,  they  must  be  protected  as  against 
an^^one  who  subsequently  obtained  title  to  the  land  from  the- 
government.* 

A  settler,  whose  homestead  entry  of  public  land  had  been  made 
over  a  year,  and  who  has  been  in  possession  for  three  years,  is  a. 
riparian  proprietor  of  the  land,  as  to  another  person  who  subse- 
quently locates  a  water-right  on  the  land.^  A  settler  on  public 
lands  having  a  right  to  make  a  homestead  entry,  who  has  made  no- 
actual  appropriation  of  the  water  thereon,  except  by  ditches  in- 
defiidte  in  size  and  extent,  and  who  makes  no  objection  to  the  ap- 
propriation of  the  water  by  another  party,  has  no  right  to  the- 
water  as  against  the  latter,  although  he  subsequently  obtains  a  pat- 
ent for  the  land.' 

One  who  purchases  vacant  government  land  bordering  on  a  nat- 
ural stream,  where  an  adjoining  owner  has  built  a  dam  in  the 
stream  to  block  the  water  for  purposes  of  irrigation,  cannot  be  en- 
joined from  interfering  with  the  dam  so  as  to  let  the  water  run 
through  it  and  irrigate  for  himself,  where  the  person  building  the 
dam,  though  intending  it  for  irrigating  purposes,  does  not  use  the 
water  for  this  purpose,  and  where  he  shows  no  damage  to  himself 
in  any  way.*  If  one  goes  upon  the  public  lands  of  the  United 
States  and  appropriates  wate)-  for  a  lawful  purpose  and  is  permitted 
to  continue  in  its  adverse  enjoyment  for  more  than  ten  years,  such 

^Peregoy  v.  McKissick,  79  Cal.  572;  Munroe  v.  Me,  2  Utah,  535. 

-Yankee  Jim's  Union  Water  Co.  v.  Crary,  25  Cal.  509. 

^Barkley  v.  Tieleke,  3  Mont.  59. 

*Crane  v.  Winsor,  2  Utah,  248;  Atchison  v.  Peterson,  87  U.  S.  20   Wall.  507, 

23  L.  ed.  414. 
^De  Necochea  v.  Gartis,  80  Cal.  404. 
^Sturr  V.  Beck,  133  U.  S.  541,  33  L.  ed.  761. 

■>Tenem  Ditch  Go.-v.  Thorpe  (Wash.  Terr.  Jan.  29,  1889)  20  Pac.  Rep.  58a 
^Peregoy  v.  McKissick,  79  Cal.  573. 


Chap.  XX.]         RIPARIAN   RIGHTS    IN    PACIFIC    STATES.  447 

appropriation  ripens  into  title  by  prescription  wliieli  cannot  be  dis- 
turbed by  one  succeeding  to  the  rights  of  the  United  States.' 

The  case  of  Coffin  v.  Left  Hand  Ditch  Co.,  6  Colo.  443,  recog- 
nizes appropriation  as  the  law  of  the  State  of  Colorado.  Some  of 
the  principles  announced  in  that  case  are  applicable  to  Nevada. 
"It  is  contended  by  counsel  for  appellants,"  says  the  court,  "that 
the  common-law  principles  of  riparian  proprietoi'sliip  prevailed  in 
Colorado  until  1876,  and  that  the  doctrine  of  priority  of  right  to 
water  by  priority  of  appropriation  thereof  was  first  recognized  and 
adopted  in  the  Constitution.  But  we  think  the  latter  doctrine  has- 
existed  from  the  date  of  the  earliest  appropriations  of  water  witliin 
the  boundaries  of  the  State.  The  climate  is  dry,  and  the  soil,  when 
moistened  only  b}'  the  usual  rainfall,  is  arid  and  un|)roductive;  ex- 
cept in  a  few  favored  sections,  artificial  irrigation  for  agriculture 
is  an  absolute  necessity.  Water  in  the  various  streams  thus  ac- 
quires a  value  unknown  in  raoister  climates.  Instead  of  being  a 
mere  incident  to  the  soil,  it  rises  when  appropriated  to  the  dignity 
of  a  distinct  usufructuary  estate,  or  right  of  property.  It  has  al- 
wa^'s  been  the  policy  of  the  national  as  well  as  the  territorial  and 
state  government,  to  encourage  the  diversion  and  use  of  water  in 
this  country  for  agriculture ;  and  vast  expenditures  of  time  and 
money  have  been  made  in  reclaiming  and  fertilizing,  by  irrigation^ 
portions  of  our  unproductive  territory.  .  .  .  The  right  to  water 
in  this  country  by  priority  of  appropriation  thereof,  we  think  it  is 
and  always  has  been  the  duty  of  the  national  and  state  govern- 
ments to  protect.  The  right  itself  and  the  obligation  to  protect  it 
existed  prior  to  legislation  on  the  subject  of  irrigation.  It  is  en- 
titled to  protection  as  well  after  patent  to  a  third  party  of  the  land 
over  which  the  natural  stream  flows,  as  when  such  land  is  a  part 
of  the  public  domain  ; "  and  it  is  immaterial  whether  or  not  it  be 
mentioned  in  the  patent  and  expressly  excluded  from  the  grant.' 

TTnder  the  Colorado  Constitution  title  to  the  unappropriated 
waters  of  the  State  is  vested  in  the  public  with  a  perpetual  right 
to  their  use  in  the  people."  The  prior  appropriator  of  waters 
from  a  stream  may  change  the  point  of  diversion  and  the  place  of 

^TolmaiiY.  Caseij,  15  Or.  83. 

^Eeno  8.  M.  &  Reduction  Works  v.  Stevenson,  20  Nev.  269,  4  L.  R.  A.  60. 

*  Whee'er  v.  Northern  Colo.  Irrigation  Co.  10  Colo.  583. 


448  IMPOSED  DUTIES,  PERSONAL,  [Part  11. 

use,  without  affecting  his  riglits  of  priority,  upon  condition  that 
the  change  shall  not  injuriously  affect  others.'  The  Colorado 
Statute  of  1881  providing  for  the  enlargement  of  a  ditch  for  tlie 
benefit  of  other  persons  applies  only  to  ditches  constructed  for  the 
purpose  of  conveying  water  through  certain  property,  and  not  to 
a  ditch  constructed  by  the  owner  for  the  irrigation  of  his  own 
lands  on  which  the  ditch  is  situated.' 

In  Washington  Territory,  miners  were  authorized  to  make  local 
regulations  on  the  subject  of  water  rights,  placer  claims  and  town 
lots,  to  be  in  force  within  their  camps.  Abandonment  of  use  for 
one  year  forfeited  claim.  Under  the  local  laws  and  customs  of 
Washington  Territory,  not  only  the  proprietors  of  mines  and  lands, 
but  any  others,  can  make  appropriations  of  water  for  the  purposes 
of  any  sort  of  business  or  trade,  or  even  for  the  sale  of  it.' 

In  Idaho  the  Statute  is  like  the  provisions  of  the  Civil  Code  of 
California  referred  to  below.  Until  a  "  complete  diversion  "  is 
made,  that  is,  the  beneficial  use  of  the  water  at  the  place  intended, 
no  claim  can  be  made  against  a  subsequent  appropriator.*  A  prior 
appropriator  of  the  water  of  a  stream,  all  of  which  he  claims,  has 
used  and  needs  for  a  useful  purpose,  has  a  right  thereto  superior 
to  that  of  one  who  has  subsequently  become  a  riparian  proprietor ; 
and  a  sale  of  water  by  one  having  a  prior  right  thereto,  if  the  sale 
was  not  made  from  an  unneeded  surplus,  but  from  that  which  he 
liad  actual  use  for,  does  not  affect  his  rights  as  a  prior  appro- 
priator.^ 

California  recognizes  the  right  of  appropriation  for  a  beneficial 
purpose,  the  right  to  cease  with  the  use.  The  statute  authorizes 
the  change  of  location,  of  use  or  of  diversion,  if  not  injurious  to 
others."  The  fact  that  an  upper  owner  had  obtained  permission 
from  the  county  water  commissioners  to  divert  water,  under  Cal. 
Stat.  1868,  p.  112,  gave  him  no  right  as  against  a  lower  owner  who 
was  a  prior  appropriator.' 

^Fuller  V.  Swan  River  Placer  Min.  Co.  12  Colo.  12. 

"^Downing  v.  More,  12  Colo.  316. 

^Tenem  Ditch  Co.  v.  Thorpe  (Wash.  Terr.  Jan.  29,  1889)  20  Pac.  Rep.  588. 

*Laws  Idaho  1881,  pp.  267-271. 

^Drake  v.  Earhart  (Idaho,  March  5,  1890)  23  Pac.  Rep.  541. 

«Cal.  Civ.  Code,  tit.  VIII.  g§  1410-1422. 

"* Lakeside  Ditch  Co.  v.  Crane,  80  Cal.  181;  De  Necochea  v.  Curtis,  80  Cal.  397, 


Chap.  XX.]        RIPARIAN    RIGHTS   IN    PACIFIC    STATES.  440 

One  who  appropriates  water  without  a  compliance  witli  tlie  rules 
as  to  posting  notices  required  by  Cal.  Civ.  Code,  §§  1415-1419, 
acquires  the  right  to  the  use  of  the  water  as  against  subsequent 
claimants  who  have  not  complied  with  such  rules.'  A  diversion 
of  water  without  compliance  with  these  requirements  gives  a  right 
to  continue  the  diversion  against  the  pre-emptioner  whose  right  of 
purchase  vests  after  the  diversion  is  fully  completed,  but  only  to 
the  extent  and  in  the  manner  of  such  actual  and  completed  di- 
version." 

Plaintiff  suing  for  deprivation  of  water  for  irrigation,  causing 
loss  to  him,  must,  under  Cal.  Code  Civ.  Proc,  §  1835,  show  bj  sat- 
isfactory evidence  that  he  had  a  right  to  use  the  waters  of  which  he 
alleges  he  was  deprived,  during  the  times  alleged  ;  and  he  must  also 
prove  an  interference  with  such  right  and  a  consequent  iivjury.' 

A  deed  conveying  to  a  mining  company  the  right  to  erect  and 
maintain  a  reservoir  upon  the  land  of  the  grantor,  in  consideration 
that  the  grantor  shall  have  the  right  to  appropriate  to  his  own  use, 
and  conduct  wherever  he  shall  desire,  so  much  of  the  waste  water 
flowing  from  the  reservoir  as  he  may  see  fit,  but  not  restricting 
the  disposition  which  the  company  shall  make  of  the  water,  is  not 
violated  by  such  company  allowing  another  person  to  tap  its  ditch 
and  conduct  the  water  therefrom,  at  a  point  between  its  mine  and 
the  land  of  the  grantor,  although  the  supply  of  waste  Avater  is 
thereby  rendered  insufficient  for  the  purposes  of  the  grantor.* 

A  person  having  the  right  to  the  exclusive  use  of  water  flowing 
through  a  ditch  constructed  across  his  land,  at  any  point  on  said 
land  where  he  may  desire  to  turn  it  for  irrigating  purposes  during 
the  spring  and  summer  months,  has  the  preference  during  the 
season  when  the  condition  of  his  premises  is  such  as  to  require  the 
use  of  the  water  for  the  purposes  mentioned,  but  has  no  right  to 
carelessly  waste  it  at  any  time,  or  to  use  it  extravagantly  or  negli- 
gently ;  and  at  other  times  the  owner  of  the  ditch  has  the  full  and 
free  right  to  use  it ;  and  each  is  required  to  respect  the  rights  and 
interests  of  the  other  regarding  the  matter  in  every  particular.* 

^Burrows  v.  BuiTotcs,  82  Cal.  564. 
"^De  Necocheo.  v.  Curtis,  «0  Cal.  397. 
^Sharp  V.  Hoffman,  79  Cal.  404. 
^Bryan  v.  Idalio  Quartz  Min.  Co.  73  Cal.  249. 
^Eusion  V.  Bybee,  17  Or.  140,  2  L.  R.  A.  568. 
29 


450  IMPOSED    DUTIES,  PERSONAL.  [Part  11. 

Under  a  judgment  defining  the  waste  water  of  a  stream  running 
through  a  certain  named  ranch  as  being  "that  portion  of  said 
waters  which  is  not  necessary  to  irrigate  said  ranch  and  for  house- 
hold jDurposes  thereon,"  the  person  having  the  right  to  such  waste 
water  is  entitled  to  all  the  water  not  reasonable  and  necessary  for 
the  purj)oses  of  that  particular  ranch;  and  the  use  by  the  owner  of 
such  ranch  of  a  greater  quantitj^  than  is  necessary,  or  a  diversion 
thereof  for  other  purposes,  is  a  violation  of  such  right  for  M^hich 
an  action  will  lie.' 

Where  a  grantor  of  a  water  right  for  the  purpose  of  irrigating 
lands,  agreeing  to  bring  the  water  through  a  main  ditch,  and  to- 
construct  a  box  or  gate  through  which  to  pass  it  into  a  ditch  to  be- 
constructed  by  the  grantee,  is  shown  to  have  supplied  the  water  at 
the  pfece  agreed  upon,  evidence  that  he  constructed  his  ditch  neg- 
ligently and  unskillfully  is  immaterial.''  A  recorded  contract  sell- 
ing a  water  right  for  the  purpose  of  irrigating  lands,  providing 
that  the  water  furnished  under  the  agreement  is  intended  to  be  an 
appurtenant  to,  and  the  right  thereto  shall  be  transferable  only 
with,  the  land;  and  that  the  agreement  and  the  covenants  of  the 
grantee  for  himself  and  his  assigns  to  jDay  a  certain  sum  annually ,. 
on  default  of  which  the  contract  to  be  void,  shall  run  with  and 
bind  the  land, —  is  not  such  a  covenant  as  will  run  with  the  land,, 
under  Cal.  Civ,  Code,  §§  1460-1466,  so  as  to  sustain  a  personal 
judgment  against  a  grantee  of  the  land,  although  it  creates  a  lien, 
upon  the  land.' 

A  riparian  owner  may  not  authorize,  as  against  a  lower  propri- 
etor, a  company  to  take  water  from  the  stream  to  be  conducted  to 
a  distance  and  sold.*  But  on  enjoining  such  upper  riparian  owner 
from  diversion  of  the  water  for  the  purpose  of  sale  or  of  use  on  non- 
riparian  lands,  the  injunction  should  not  compel  the  closing  up  of 
the  canal,  so  as  to  prevent  its  use  for  diverting  the  water  for  legiti- 
mate purjDoses  or  for  carrying  off  surplus  water,  although  it  was 
constructed  for  unauthorized  diversion  of  the  water.^ 

In  an  action  by  a  lower  riparian  owner  against  an  upper  owner 
to  determine  their  respective  rights  as  to  the  diversion  of  the  water 

^Byrne  v.  Crafts,  73  Cal.  641. 

2  ^Fresno  Canal  d  Irrig.  Co.  v.  Dunbar,  80  Cal.  530. 
*EeUbron  v.  Fowler  Switch  Canal  Co.  75  Cal.  426. 
^Heilbron  v.  76  Land  &  Water  Co.  80  Cal.  189. 


Chap.  XX.]         USE    OF    WATERS    TO    SlPl'LY    CITIES.  451 

into  ditches,  where,  in  view  of  the  character  of  tlie  soil,  the  ditchetj 
are  apt  to  change  in  size,  a  finding  as  to  the  amount  of  water  which 
plaintiff  is  entitled  to  have  run  past  defendant's  ditch  should  de- 
termine the  inches  or  gallons  of  water,  iustead  of  fixing  the  width, 
grade  and  depth  of  the  ditch.'  A  judgment  in  an  action  for  the 
diversion  of  a  stream,  restraining  the  defendant  from  interfering 
with  the  pLaintifi''s  dam  or  "  turning  out  any  of  tlie  waters  .  .  . 
after  they  shall  have  reached  plaintiff's  dam,  so  long  as  the  quan- 
tity shall  not  exceed  25  inches," — does  not,  in  a  suhsequent  action, 
preclude  the  defendant  from  proving  a  prior  appropriation  above 
the  plaintiff's  dam.' 

Section  o±—Us6  of  Waters  to  Supply  Cities. 

Where  one  has  diverted  the  water  from  a  stream,  and  consumes 
it  for  the  purpose  of  supplying  the  wants  of  a  neighboring  town, 
the  diversion  is  rendered  unlawful  by  the  fact  that  it  is  for  an  ex- 
traordinary or  artificial  use,  and  is  not  restored  to  its  natural  chan- 
nel, where  it  is  accustomed  to  flow.'  ISTo  person  has  a  right  to 
cause  such  diversion,  and  it  is  a  wrongful  act,  for  which  an  action 
will  lie  by  the  lower  riparian  proprietor  without  proof  of  any  spec- 
ial damage.*  The  injury  done  the  riparian  owner  in  such  a  case 
is  an  invasion  of  his  general  right  to  have  the  watercourse  flow  in 
its  natural  channel,  through  his  lands,  operating  to  interrupt  a 
possible  water-power,  or  to  suspend  an  agency  capable  of  impart- 
ing fertility  to  the  soil  through  which  it  passes,  or  other  damage 
of  a  general  character.'  It  was  decided  in  the  Alabama  cases 
cited  that  a  riparian  proprietor  is  entitled  to  nominal  damages  for 
any  disturbance  of  his  right  by  diversion  of  the  waters  from  the 
stream,  without  returning  them  to  the  natural  channel,  although 
he  offers  no  evidence  of  actual  or  special  damage.  The  diversion 
in  those  cases  was  for  the  purpose  of  suj^plying  the  inhabitants  of 

'  Lake&ide  Ditch  Co.  v.  Crane,  80  Cal.  181. 

"^WUson  V.  Devine,  80  Cal.  385. 

^Heilbron  v.  76  Land  &  Water  Co.  80  Cal.  189. 

*NewhaU  v.  Ircmn,  8  Cusli.  59.5,  54  Am.  Dec.  790;  Gancood  v.  New  York 

Cent.  &  II.  R.  R.  Co.  83  N.  Y.  400;  Lilling  v.  Murray,  6  Ind.  324,  63 

Am.  Dec.  385. 
^Parker  v.  Oriswold,  17  Conn.  288,  42  Am.  Dec.  739;  Stein  v.  Burden,  20 

Ala.  127,  65  Am.  Dec.  394;  S.  C.  24  Ala.  130,  CO  Am.  Dec.  453;  Burden  v. 

Stein,  27  Ala.  104. 


452  IMPOSED  DUTIES,  PERSONAL.  [Part   II. 

a  citj  with  water  through  the  medium  of  a  system  of  waterworks. 
"  The  law,"  it  was  said  bj  Goldthwaite,  e/.,  "  in  the  absence  of  any 
special  injury,  gives  nominal  damages  [for  the  invasion  of  every 
legal  right],  on  the  ground  that  the  undisturbed  enjoyment  or 
continuation  of  such  acts,  without  the  consent  of  the  owner,  would 
ripen  into  evidence  of  a  right  to  do  them.'" 

The  owner  of  land  over  which  a  stream  of  water  flows  has  a 
right  thereto  without  diversion,  interruption  or  diminution  of  that 
element  so  indispensable  to  life,  both  animal  and  vegetable,  and  so 
useful  as  propelling  power  for  machinery.  The  law  recognizes  a 
watercourse  as  a  subject  of  property,  and  guards  the  rights  of  the 
owners  thereof  with  the  same  care  that  it  extends  to  all  other 
things  that  are  the  subjects  of  exclusive  ownership.  The  right 
which  the  owner  of  land  has  to  a  watercourse  flowing  over  it  is  in 
the  nature  of  a  freehold  right,  and  it  cannot  be  taken  from  him 
constitutionally  for  public  use  without  just  compensation."  This 
right,  being  thus  secured  by  the  Constitution  and  laws,  cannot  be 
indirectly  taken  away,  while  protected  from  direct' deprivation. 
The  supreme  power  in  the  State  cannot  enact  a  law  M^hicli  will 
authorize  the  diminution  or  diversion  of  a  stream  from  its  natural 
channel  for  public  purposes  without  providing  adequate  compen- 
sation for  the  right — the  property  to  be  so  appropriated  to  public 
use.^ 

While  a  city  or  borough,  or  a  company  having  the  right  of  emi- 
nent domain,  may  take  a  spring  or  stream  of  water  to  supply  a 
municipality,  it  can  only  do  so  by  making  compensation  to  those 
who  are  deprived  of  the  use  of  the  water,  as  provided  by  the  Con- 
stitution. A  taking  without  compensation  is  a  trespass,  as  much 
so  as  the  taking  of  land  by  a  railroad  company  to  construct  its 
road,  without  making  compensation  or  filing  a  bond  with  security 
as  provided  by  law.  "Where  the  power  to  take  exists,  it  must  be 
exercised  according  to  law ;  if  it  is  not,  the  corporation  so  taking 
becomes  a  trespasser,  and  may  be  proceeded  against  as  such. 

It  is  a  mistake  to  assume  that  the  purchase  of  an  acre  of  land 

^Stein  V.  Burden,  24  Ala.  148. 

Gardner  v.  Mwhurgh,  2  Johns.  Ch.  162,  1  N.  Y.  Ch.  L,   ed.  333;  Canal 

Comrs.  V.  Peojile,  5  Wend.  423;  Ex  parte  Jennings,  6  Cow.  518;  People  v. 

Piatt,  17  Johns.  195;  2  Hilliard,  Real  Prop.  Ill;  McCord  v.  High,  24 

Iowa,  336. 
'^McCord  V.  High,  24  Iowa,  336. 


Chap.  XX.]  USE    OF    WATERS    TO    SUPPLY    CITIES.  453 

will  give  a  company  an  absolute  right  to  a  spring  of  water  thereon, 
for  the  purchase  of  land  including  a  spring  will  not  justify  divert- 
ing the  water  flowing  therefrom  from  its  natural  channel  to  sup- 
ply a  city  with  water.  By  the  purchase  of  an  acre  of  land  oit 
which  a  spring  is  situate  the  company  acquires  the  rights  of  a  ri- 
parian owner;  neither  more,  neither  less.*  What  its  rights  as 
riparian  owner  are  were  sufficiently  defined  in  the  recent  case  of 
Haupts  Appeal^  125  Pa.  222,  where  it  was  saicf:  "If  the  author- 
ity of  the  plaintiff  were  measured  by  its  rights  as  riparian  owner 
it  would  be  slight  enough.  It  might  indeed  use  the  water  for  the 
domestic  purposes  incident  to  the  ten  acres  of  land.  If  there  was 
a  tenant  thereon  he  could  use  it  for  watering  his  stock  and  for 
household  purposes ;  for  any  useful,  necessary  and  proper  purpose 
incident  to  the  land  itself,  and  essential  to  its  enjoyment.  But 
that  the  rights  of  a  riparian  owner  would  justify  the  plaintiff  in 
carrying  the  water  for  miles  out  of  its  channel  to  supply  the  Bor- 
ough of  Ashland  with  water  is  a  proposition  so  palpably  erroneous 
that  it  would  be  a  waste  of  time  to  discuss  it.'" 

The  purchase  of  an  acre  of  land,  including  a  spring,  gives  the 
company  the  rights  of  a  riparian  owner.  But  water  docs  not 
pass  by  the  deed  beyond  its  reasonable  use  by  the  vendee  as  a  ri- 
parian owner.  As  was  said  in  Haupfs  Appeal^  125  Pa.  222  : 
'*  There  can  be  no  such  thing  as  ownership  in  flowing  water;  the 
riparian  owner  may  use  it  as  it  flows;  he  may  dip  it  up  and  be- 
come the  owner  by  confining  it  in  barrels  or  tanks,  but  so  long  as 
it  flows  it  is  as  free  to  all  as  the  light  and  air."  Such  rights  will 
not  be  a  justification  for  the  diversion  of  the  water  from  its  nat- 
ural channel  to  supply  a  city.  Thus,  the  City  of  Newark  has  no 
special  rights  in  the  water  of  the  Passaic  River,  either  by  reason 
of  its  riparian  ownership  or  by  grant  from  the  State  to  take  its 
w^ater  supply  from  any  source,  so  as  to  enable  its  aqueduct  board, 
by  showing  an  apprehended  distinct  injury  to  the  city,  to  maintain 

^Paine  v.  ^yoolU,  108  Mass.  173;  Potter  v.  Howe,  141  Mass.  3r)8,  2  New  Eng. 
Rep.  167;  Sicindon  Watericorks  Co.  v.  Wilts  &  B.  Canal  Nav.  Co.  L.  H.  7 
H.  L.  G97;  Acquackanonk  Water  Co.  v.  Watson.  20  N.  J.  Eq.  30(5;  Hall  v. 
Ionia,  38  Mich.  493;  Stainlon  v.  Metropolitan  Board  of  Works,  23  Beav. 
225,  2G  L.  J.  N.  S.  Ch.  300. 

^  Wilts  &  B.  Canal  &  N.  Co.  v.  Swindon  Watenoorks  Co.  L.  R.  9  Ch.  451; 
Johnson  v.  Boston,  130  Mass.  452;  Fay  v.  Sfilem  &  D.  Aqueduct  Co.  Ill 
Mass.  27;  Bush  v.  Trowbridge  Water  Works  Co.  L.  R.  10  Cli.  459;  Hough 
V.  Doylestown,  4  Brewst.  333;  Stone  v.  Yeovil,  L.  R.  1  C.  P.  Div.  691. 


454  IMPOSED  DUTIES,  PEKSONAL.  [Fart  II. 

an  individual  suit  to  restrain  a  city  above  it  from  discharging  its 
sewer  into  the  river.'  If  a  company  has  the  right  to  divert  it 
under  its  pov;er  of  eminent  domain,  the  exercise  of  such  right  in- 
volves compensation  to  those  who  are  or  may  be  injured  by  such 
diversion.  And  it  can  only  take  the  water  by  the  exercise  of  this 
right  and  compensating  the  riparian  owners.- 

A  corporation  cannot  appropriate,  to  its  own  use,  waters  col- 
lected in  one  of  the  great  ponds  of  the  State,  which  is  situated 
within  a  certain  township  in  which  a  portion  of  the  pond  granted 
is  also  situated,  under  a  charter  granting  the  right  to  "  take  the 
waters  of  Great  Pond  .  .  .  and  the  waters  of  any  spring  or  ai'te- 
sian  or  driven  wells"  within  such  town  "and  thcM^ater  rights  con- 
nected therewith  "  excepting  a  certain  spring ;  but  it  may  appro- 
priate waters  in  springs,  etc.,  within  the  watershed  of  such  pond 
which  have  not  yet  reached  it.' 

A  person  cannot  draw  water  from  a  pond  b}^  percolation,  if  he 
has  no  right  to  draw  it  therefrom  directly.'  A  corporation,  al- 
though a  riparian  proprietor,  cannot,  to  carry  water  to  a  distance, 
use  a  gallery  which  does  not  gather  the  water  naturally  belonging 
to  the  land,  but,  by  being  located  upon  the  shores  of  the  pond, 
when  its  water  is  pumped  out  a  vacuum  is  created,  which  the  vol- 
ume of  the  water  in  the  pond  within  percolating  distance  will  al- 
ways fill.^ 

^Newark  Aqueduct  Board  v.  Passaic,  45  N.  J.  Eq.  393. 

^Lord  V.  Meadville  Water  Co.  135  Pa.  122,  8  L.  R.  A.  202;  Gardner  v.  Neic- 
burgh,  2  .Johns.  Cli.  162,  1  N.  Y.  Ch.  L.  ed.  332;  Eaton  v.  Boston,  C.  &  M. 
R.  Co.  51  N.  H.  504,  510;  Meyers  v.  Si.  Louis,  8  Mo.  App.  266,  275;  Hard- 
ing V.  Stamford  Water  Co.  41  Conn.  87;  McCord  v.  High,  24  Iowa,  336; 
Cooper  \.  Williams,  5  Ohio,  391;  Nevins  v.  Peoria,  41  111.  502;  Homochitts 
River  Comrs.  v.  Withers,  29  Miss.  21;  Bailey  v.  Woburn,  126  Mass.  416, 
418. 

^Proprietors  of  Mills  v.  Braintree  Water  Supply  Co.  149  Mass.  478,  4  L.  R. 
A.  272.  iSee  Greenlenf-v.  E'rancis,  18  Pick.  117;  Ocean  Grove  Camp  Meet- 
ing Asso.  V.  Asbury  Park  Comrs.  40  N.  J.  Eq.  447,  2  Cent.  Rep.  180;  Blood- 
good  V.  Ayers,  37  Hun,  356;  Chase  v.  Silverstone,  62  Me.  175;  Chasemore 
V.  Richards,  7  H.  L.  Cas.  349. 

^Proprietors  of  Mills  v.  Braintree  Water  Supply  Co.  149  Mass.  478,  4  L.  R. 
A.  272. 

'^Harf  V.  Jamaica  Pond  Aqeduct  Corp.  133  Mass.  488;  Bailey  v.  Woburn,  126 
Mass.  416,  418;  Cowdrey  v.  Woburn,  136  Mass.  409;  JStna  Mills  v.  Wal- 
tham,  126  Mass.  422,  425;  ^tna  Mills  v.  Brookline,  127  Mass.  69,  71;  Wil- 
son V.  Neio  Bedford,  108  Mass.  261;  Grand  Junction  Canal  Co.  v.  Shugar, 
L.  R.  6  Ch.  483;  Emporia  v.  Soden,  25  Kan.  588,  37  Am.  Rep.  265,  and 
note;  Swindon  Watencorks  Co.  v.  Wilts  c£  B.  Canal  Nav.  Co.  L.  R.  7  H. 
L.  697,  affirming  L.  R.  9  Ch.  451;  Proprietors  of  Mills  v.  Braintree  Water 
Supply  Co.  149  Mass.  478,  4  L.  R.  A.  272. 


CHAPTER  XXI. 

REMEDY  FOR  DIVERSION  OR  OBSTRUCTION  OF  WATERCOURSE. 

Sec.  53.  Remedy  for  Diversion  of  Flotuing  Water. 

8ec.  54.   Obstructions  to  the  Flow  of  Waters. — Bridges  over  Flowing 

Waters. 
Sec.  55.  Relief  in  Case  of  Obstruction  to  Flow  of  Stream. 

a.  By  Indictment  or  Information. 

b.  Individual  Right  to  Abate. 

c.  Private  Right  of  Action  for  Obstructing  Watercourse. 

d.  Jurisdiction  of  Equity  over  Obstruct io7i  of  Flowing  Water, 

Section  ^^.— Remedy  for  Diversion  of  Flowing 

Water. 

Where  one,  witliont  committing  a  trespass  upon  the  propert}'-  of 
another,  can  put  a  stop  to  a  wrongful  diversion  of  water,  to  the 
use  of  which  he  is  entitled,  he  may  do  so,  if  he  inflict  thereby  no 
injury  upon  third  parties.  Thus  where  a  person  has  been  deprived 
of  a  portion  of  a  stream  flowing  through  his  land  by  its  diversion 
through  an  artificial  channel  made  by  a  road  supervisor  in  the 
•construction  of  a  crossing  for  the  highway  over  the  stream,  lie  may 
■dam  up  the  artificial  channel  and  thus  restore  the  flow  of  the  water 
to  the  natural  one.' 

Subject  only  to  the  intervention  of  the  public  to  take  under  the 
right  of  eminent  domain,  the  mill  owner  can  enjoin  any  person 
who  so  far  diverts  the  water  from  coming  to  his  mill  as  to  dimin- 
ish his  supply  substantially;  and  while  this  does  not  prevent  the  or- 
dinary use  for  domestic  purposes,  so  long  as  tlie  surplus  is  returned 
to  the  stream,  yet  when  it  is  so  used  as  to  cause  a  substantial  dimi- 
nution, the  court  will  interpose,"  A  corporation  cannot  without 
condemnation  proceedings  take  water  upon  any  plea  that  it  is  for 

^McCord  V.  High,  24  Iowa,  336. 

^Cammings  v.  Barrett,  10  Cash.  186;  Elliot  v.  Fitchhurg  R.  Co.  10  Cusli.  193; 
Ca/1^  V.  Daniels,  5  Met.  237,  8  Met.  476;  Wed  Roxbury  v.  Stoddard,  7 
Allen,  169;  UatcJiv.  Dwight,  17  Mass.  289,  296;  Drake  v.  Ilimilton  Woolen 
Co.  99  Mass.  579,  581;  Lowell  v.  Boxion,  111  Mass.  464,  469;  3  Kent,  Com. 
441;  Johnson  v.  Jordan,  2  Met.  239.  See  Lund  v.  New  Bedford,  121  Mass. 
289. 


I 


456  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

the  benefit  of  the  public,  on  any  account.'  The  riparian  owners 
are  in  such  an  attempt  entitled  to  relief  by  injunction." 

Wliere  the  damage  the  defendant  is  doing  works  to  the  irrevo- 
cable injury  of  the  plaintiffs,  this  belongs  to  that  class  of  cases 
where  the  court  will  interfere  by  injunction.'  If  the  complainant 
makes  proof  of  the  fact  that  he  has  suffered  any  special  perceptible 
damage  by  the  diversion  of  the  water  in  question,  or  that  he  was 
making  any  use  of  it,  or  that  it  was  of  any  particular  value  to  him, 
he  is  entitled  to  an  injunction  perpetually  restraining  the  defendant 
from  a  continuance  of  his  wrongful  act  of  diversion.*  But  where 
he  is  taking  no  advantage  of  his  usufructuary  right,  but  allows  the 
water  to  flow  by  unutilized,  and  it  appears  to  be  of  no  special  value 
to  him,  he  will  not  be  permitted  to  call  for  equitable  interference 
in  his  behalf,  further  than  to  vindicate  his  right,  and  prevent  a  loss 
of  it  by  adverse  user  and  lapse  of  time.  A  court  of  equity  will 
use  its  discretion,  in  such  case,  not  to  interfere  by  injunction,  ex- 
cept for  this  purpose,  but  leave  the  complainant  to  his  remedy  at 
law.' 

A  riparian  proprietor  owning  to  the  center  of  a  stream  is  en- 
titled to  the  aid  of  equity  to  prevent  a  diversion  of  the  waters 

^Lake  View  v.  Rose  Hill  Cemetery  Go.  70111.  191;  Grand  Junction  Canal  Co. 

V.  Shugar,  L.  R.  6  Ch.  483;  Emporia  v.  Soden,  25  Kan.  588,  37  Am.  Rep. 

265,  and  note.     See  also  Swindon  Waterworks  Go.  v.  Wilts  &  B.  Canal  Nav. 

Co.  L.  R.  7  H.  L.  697. 
^Proprietors  of  Mills  v.  Braintree  Water  Supply  Co.  149  Mass.  478,  4  L.  R.  A. 

272. 

Boston  Water  Power  Co.  v.  Boston  &  W.  B.  Corp.  16  Pick.  512,  525;  Ballou 
V.  Bopkmton,  4  Gray,  324;  Hart  v.  Jamaica  Pond  Aqueduct  Corp.  13S 
Mass.  488;  Watuppa  Reservoir  Co.  v.  Fall  River,  147  Mass.  548,  1  L.  R.  A. 
466;  Watuppa  Resermir  Co.  v.  Fall  River,  134  Mass.  267;  Kenison  v.  Ar- 
lington, 144  Mass.  456,  4  New  Eng.  Rep.  340;  Grand  Junction  Canal  Co. 
V.  Shugar,  L.  R.  6  Ch.  483;  Emporia  v.  Soden,  25  Kan.  588,  37  Am.  Rep. 
265,  and  note;  Merrifield  v.  Lombard,  13  Allen,  16;  Woodward  v.  Worcester, 
121  Mass.  245;  Silver  Spring  B.  &  D.  Co.  v.  Wanskuck  Co.  13  R.  I.  611; 
Higgins  v.  Flemington  Water  Co.  36  N.  J.  Eq.  538;  Atty-Gen.  v.  Birming- 
ham, 4  Kay  &  J.  528;  Columbus  v.  Hydraulic  Woolen  Mills  Co.  33  Ind. 
435;  Ormerod  v.  Todmorden  J.  S.  Mill  Co.  L.  U.  11  Q.  B.  Div.  155;  Smith 
V.  Rochester,  92  N.  Y.  463;  Clowes  v.  Staffordshire  Potteries  Waterworks 
Co.  L.  R.  8  Ch.  143,  4  Eng.  Rep.  (Moak's  notes)  821;  Metropolitan  Asylum 
Hist.  V.  Hill,  L.  R.  6  App.  Cas.  193,  34  Eng.  Rep.  (Moak's  notes)  378. 

^Emporia  v.  Soden.  25  Kan.  58S,  37  Am.  Rep.  265;  Garwood  v.  New  York 
Cent.  dkH.  R.  R.  Co.  83  N.  Y.  400,  38  Am.  Rep.  452;  Gould,  Waters, 
§214. 

^Franklin  V.  Pollard  Mill  Co.  88  Ala.  318;  Smith  v.  Rochester,  93  N.  Y.  463; 
Corning  v.  Troy  Iron  &  Nail  Factory,  40  N.  Y.  220,  per  Woodruff,  /.  / 
Clinton  v.  Myers,  46  N.  Y.  511,  7  Am.  Rep.  373,  379. 


Chap.  XXL]       REMEDY    FOK   DIVERSION    OF   FLOWING    WATER.       457 

from  their  natural  channel,  and  this  notwithstanding  that  he  does 
not  himself  use  the  water-power,  and  has  sustained  but  small  pe- 
cuniary damage.'  lie  is  entitled  to  an  injunction  without  first 
establishing  his  right  at  law  by  recovering  a  judgment  in  damages.' 
In  an  action  to  resti-ain  the  diversion  of  water  from  a  stream,  an 
allegation  to  the  effect  that  the  plaintiff  was  in  a  position  to  use  or 
distribute  the  water  was  unnecessary.' 

Where  a  riparian  owner  seeking  an  injunction  against  diversion 
of  the  water  is  shown  to  make  no  special  use  of  the  stream,  and  it 
appears  that  the  water  is  of  great  importance  to  defendant,  defend- 
ant will  not  be  enjoined  from  consuming  water  which  plaintiff 
does  not  use,  but  may  be  restrained  from  using  the  water  to  the 
sensible  damage  of  plaintiff  for  any  purpose  for  which  he  may,  at 
present  or  in  the  future,  use  the  water.* 

In  Garwood  v.  Nexo  York  Cent.  &  R.  R.  R.Co.,  83  N.Y.  400,  38 
Am.  Rep.  452,  the  bill  was  filed  to  prevent  a  railroad  company,  as 
riparian  owner,  from  diverting  water  of  a  running  stream  by  pipes 
and  reservoirs,  for  the  use  of  its  locomotive  engines,  to  the  detri- 
ment of  a  lower  proprietor,  who  was  a  mill  owner,  and  who  claimed 
that  the  diversion  diminished  the  grinding  power  of  his  mill.  The 
defendant  was  restrained  only  "  from  diverting  the  water  to  the 
injury  of  the  plaintiff."  Upon  appeal  by  the  plaintiff,  the  judg- 
ment was  affirmed  by  the  New  York  Court  of  Appeals.*  The 
principle  of  this  and  other  analogous  decisions  is  that  the  extraor- 
dinary process  of  injunction  will  be  used  by  the  court  of  chancery 
only  so  far  as  it  is  necessary  to  vindicate  or  enforce  valuable  rights 
of  parties  litigant,  and  will  ordinarily  not  be  allowed  where  the 
injury  sought  to  be  restrained  is  only  trivial  in  its  nature.  But  a 
licensee  from  the  State  of  the  right  to  use  the  waters  of  a  great 
pond  will  be  protected  in  such  right  as  against  one  who  is  remov- 
ing such  water  without  authority,  especially  where  the  licensee  has 
erected  valuable  mills  and  has  had  the  exclusive  use  and  control  of 
the  waters  in  their  operation  for  a  period  of  sixty -five  years."     In- 

1  Wem  V.  Orecjon  1.  &  8.  Co.  13  Or.  496. 

''Lux  V.  Eaggin,  69  Gal.  255. 

^" Moore  v.  Clear  Lake  Water  Works,  68  Cal.  146. 

*mbricht-v.  Eufaula  Water  Co.  86  Ala.  587. 

»See  also  Earl  of  Sandicieh  v.  Great  Northern  R.  Co.  L.  R.  10   Ch.  Div.  707. 

^Proprietors  of  Mills  v.  Braintree  Water   Supply  Co.  149  JIass.  478,  4  L.  R. 
A.  272. 


458  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

junction  will  lie  to  prevent  the  wrongful  withdrawal  of  water  from 
a  great  pond  to  the  injury  of  a  mill  owner,  as  an  action  at  law 
would  compensate  only  for  damages  already  inflicted  at  the  time 
suit  was  brought.' 

But  when  a  water-supply  company  has  established  its  works  in 
good  faith,  under  a  claim  of  right  under  its  charter;  and  the  ripa- 
rian jDroprietors  have  unnecessarily  delayed  to  bring  their  bill  until 
after  the  defendant  has  incurred  large  expense,  and  an  injunction 
-as  prayed  for  by  the  plaintiffs  would  impose  great  loss  upon  the 
defendant  and  would  be  a  serious  inconvenience  and  injury  to  the 
inhabitants  of  a  town, — tlie  plaintiffs  have  been  guilty  of  laches,  and 
have  lost  their  rights  in  equity,  and  must  look  to  their  remedy  at 
law,'  Actions  of  tort  have  been  the  usual  remedies  for  unauthor- 
ized proceedings  for  obtaining  and  furnishing  a  public  water  sup- 
ply.' If  the  defendant  is  acting  ultra  vires,  the  proper  remedy 
is  by  an  information  brought  by  the  attorney-general.* 

A  riparian  owner  may  grant  a  part  of  his  estate,  not  abutting  on 
the  stream,  and,  as  appurtenant  thereto,  a  right  to  draw  water  from 
the  stream  through  his  remaining  land;  and  for  any  diversion  of 
the  natural  flow  of  the  stream  disturbing  snch  right,  the  grantee 
may  maintain  an  action.^  But  one  is  liable  for  diverting  water 
alone  or  jointly  with  others,  under  a  lease  from  third  persons,  or 
for  its  diversion  by  others  under  a  lease  from  him.' 

In  a  suit  to  enjoin  defendants  from  diverting  the  water  of  a 
stream,  a  count  in  the  complaint  alleging  that  the  stream  has  nat- 
ural  and  well-defined  bed,  banks  and  channel  from  its  source  to, 
upon  and  across  the  lands  of  the  several  j)laintiflEs  when  unob- 
structed, is  not  overcome  by  an  allegation  that  the  stream  flows 
upon  and  across  the  lands  owned  by  certain  named  plaintiffs,  and 

^Proprietors   of  Mills  v.  Braintree  Water  Suj)ply  Co.  149  Mass.  478,  4  L.  R. 

A.  273. 
^Cooper  V.  Huhhmk,  7  Jur.  N.  S.  457;  Bankard  v.  Honghton,  27  Beav.  425, 

7  Week.   Rep.  197;   Birmingham   Canal   Co.  v.  Lloyd,  18  Ves.  Jr.  515; 

Fuller  V.  Melrose,  1  Allen,  166. 
'See  Wilson  v.  Lynn,  119  Mass.  174;  Wamesit  Power  Co.  v.  Allen,  120  Mass. 

352;  Warren  \.  Sj)encer  Water  Co.  143  Mass.  9,  3  New  Eng.   Rep.   Ill; 

Kenison  v.  Arlington,  144  Mass.  456,  4  New  Eng.  Rep.  340;  Lund  v.  New 

Bedford,  121  Mass.  286;  Pickman  v.  Peabody,  145  Mass.  480,  5  New  Eag. 

Rep.  394. 
^AttyOen.  v.  Jamaica,  Pond  Aqueduct  Corp.  133  Mass.  361. 
''St.  Anthony  Falls  Water-Power  Co.  v.  Minneapolis,  41  Minn.  270. 
^Clement  v.  Gould,  61  Vt.  573. 


Chap.  XXI.]       KEMEDY    FOR   DIVEliSION    OF    FLOWING   WATER.      459 

to  some  extent,  by  such  natural  flow,  seepage  and  percolation,  irri- 
gates and  waters  portions  of  the  lands  of  the  other  plaintiffs.'  It 
is  not  a  misjoinder  of  causes  of  action  for  a  complaint  in  trespass 
to  allege  that  defendant  entered  plaintiff's  close  with  force,  and 
diverted  the  waters  of  a  certain  spring,  and  frightened  his  wife. 
Such  additional  facts  are  matters  of  aggravation.' 

Proof  that,  after  defendant  began  taking  water  from  a  certain 
■creek,  there  was  less  water  in  the  stream  during  the  snmmer  months 
than  before,  is  admissible  in  an  action  for  damages  for  withdraw- 
ing water  from  such  stream.^  But  evidence  of  injuries,  caused 
by  the  diversion,  to  lands  of  the  plaintiff  not  bordering  on  the 
stream,  and  to  his  cattle  pastured  thereon,  is  inadmissible.* 

In  an  agreement  by  one  party  to  pay  another  for  the  use  of  the 
Avater  of  a  stream  during  seasons  when  there  is  not  enough  for  all 
parties,  a  recital  that  the  former  is  the  owner  of  the  surplus  waters 
will  not  estop  the  latter  from  claiming  ownership  of  the  waters 
of  the  stream,  so  as  to  defeat  an  action  by  him  to  restrain  a  diver- 
sion.* A  deed  of  lands  reserving  a  water  right,  "  without  preju- 
dice to  any  rights  which  "  the  grantee  now  has,  is  not  an  estopjiel 
as  to  any  of  the  grantee's  existing  rights,  or  an  admission  by  him 
of  the  grantor's  title  or  right  to  the  water  reserved,  or  of  the  truth 
■or  accuracy  of  his  description.* 

In  an  action  by  a  lower  riparian  owner  to  restrain  the  diversion 
by  an  upper  owner  of  the  waters  of  a  stream,  a  decree  ordering 
that  the  water  be  allowed  to  flow  unrestricted  to  plaintiff's  lands  in 
the  natural  flow,  except  a  given  number  of  inches  previously  ap- 
propriated by  defendant,  is  erroneous,  since  defendant  would  there- 
by be  deprived  of  the  reasonable  use  of  any  part  of  the  water  for 
irrigation  or  other  necessary  purpose  as  riparian  proprietor.'  A 
diversion  being  unlawful,  it  is  not  to  be  presumed  that  it  will  be 
continued;  hence  no  foundation  is  laid  for  a  recovery  of  damages 
that  might  be  sustained  in  the  future.' 

Wfnirchilly.  Latter,  84  Cal.  233. 

^Razzo  V.  Vanii  (Cal.  May  28,  1889)  21  Pac.  Rep.  762. 

'Garwood  v.  Neto  York  G.  &  H.  R.  R.  Co.  116  N.  Y.  649. 

^Ueinlen  v.  Fresno  Canal  &  I.  Co.  68  Cal.  35. 

^McLear  v.  Uapgood  (Cal.  Sept.  10,  1890)  24  Pac.  Rep.  788. 

«Lawre7iee  v.  Whitney,  115  N.  Y.  410,  5  L.  R.  A.  417. 

■>  Van  Bibber  v.  Jlilfon,  84  Cal.  585. 

^Vline  V.  New  York  Cent.   &  H.  R.  R.  Co.  101  N.  Y.  89.  2  Cent.   Rep.  116; 
SUsby  Mfg.  Co.  v.  State,  104  N.  Y.  562,  6  Cent.  Rep.  812. 


460  IMPOSED   DUTIES,    PERSONAL.  [Part   II» 

Section  o^.—OhstriictioTis  to  the  Flow  of  Waters.— 
Bridges  over  Flowing  Waters. 

It  is  the  right  of  any  owner  of  land  fronting  on  a  flowing  stream 
to  have  it  continue  to  flow  in  its  natural  channel;  and  any  obstruc- 
tion placed  in  such  a  stream,  which  so  diverts  it  as  to  cause  an  in- 
jury to  such  land,  is  an  injury  for  which  an  action  will  lie,  even  if 
the  person  placing  the  obstruction  should  have  used  great  care  and 
have  been  unable  to  foresee  the  consequences.'  Every  owner  of 
land  through  which  a  stream  of  water  flows  has  presumptively  a. 
right  against  owners  of  land  below  him  to  have  the  stream  flow 
from  his  land,  in  its  accustomed  course,  unobstructed.  Such  right 
is  infringed  by  construction  of  a  dam  below  which  flows  the  stream 
back  upon  the  land  which  naturally  it  would  leave.'' 

The  accustomed  course  of  a  natural  stream  which  a  riparian 
owner  is  entitled  to  have  preserved  is  the  natural  and  apparently 
permanent  course  existing  when  the  right  is  asserted  or  called  in 
question.'  Awell  defined  watercourse  of  running  water,  although 
dry  at  certain  seasons,  is  within  the  doctrine  against  obstructions.* 

A  riparian  proprietor  has  rights  in  a  brook  or  watercourse  on 
the  rear  line  of  his  land,  which  give  him  a  cause  of  action  against 
any  person  who  prevents  the  flow  in  that  watercourse,  or  the  flow 
of  water  from  his  land  by  that  watercourse,  or  who  befouls  the 
same.*  A  person  who  obstructs  a  watercourse  or  channel  on  his 
farm,  in  which  the  surface  water  has  been  accustomed  to  flow  for 
many  years,  is  liable  for  the  damages  thereby  occasioned  to  a  lower 
proprietor.* 

There  can  be  no  prescriptive  right  to  maintain  or  continue  an 
obstruction  to  the  navigation  of  a  public  stream.''  Neither  time 
nor  a  grant  to  erect  a  dam  would  confer  the  right  to  obstruct  the 
navigation  of  a  river.*     So  one  who  obstructs  materially  a  navi- 

^Annendaiz  v.  Stillman,  67  Tex.  458;   Wheatley  v.    Chrisman,  24  Pa.  398;. 

Pennsylvania  R.  Co.  v.  Miller,  112  Pa.  34,  3  Cent.  Rep.  127. 
■^Scriver  v.  Smith,  100  N.  Y.  471,  1  Cent.  Rep.  763. 
^Withers  v.  Purchase,  60  L.  T.  N.  S.  819,  40  Alb.  L.  J.  214. 
*Bailey  v.  Schnitzius,  45  N.  J.  Eq.  179,  11  Cent.  Rep.  737. 
^Stanch field  v.  Neidon,  142  Mass.  110,  2  New  Eng.  Rep.  526. 
^Rhoads  v.  Davidheiser,  133  Pa.  226. 
■^  Olive  V.  State,  86  Ala.  88,  4  L.  R.  A.  33. 
*Angell,  Watercourses,  §   354;  Stoughton  v.  Baker,  4  Mass.  522;   VoogM  r. 

Winch,  2  Barn.  &  Aid.  662;  Woolrych,  Waters,  270. 


Chap.  XXI.]       OBSTRUCTIONS   TO   THE    FLOW   OF   WATEliS.  4G1 

^able  stream  without  the  consent  of  the  Legislature  is  liable  for 
the  consequences.' 

A  riparian  proprietor  has  a  right  to  protect  his  land  from  a 
threatened  change  from  the  sea  or  in  the  channel  of  an  adjoining 
stream  bj  erecting  along  the  border  thereof  a  bulkhead  as  high  as 
the  necessity  demands."  And  the  owner  of  land  on  a  river  or  run- 
ning stream  has  the  right  to  construct  embankments  for  protection 
from  currents  or  otherwise  benefiting  it,  subject  to  the  duty  not  to 
occasion  material  injury  to  others  situated  ujjon  the  same  stream.^ 
But  such  owner  has  no  right  to  so  elevate  the  natural  bank  that 
it  will,  at  the  time  of  ordinary  floods,  cause  the  swollen  current 
to  overflow  and  destroy  the  lands  of  another  proprietor.* 

A  proprietor  who  sells  land  fronting  upon  a  river,  on  whicli  is 
■erected  a  bank  or  wall  to  prevent  the  overflow  of  the  land  further 
back  occupied  by  a  tenant,  is  not,  in  the  al)sence  of  express 
contract  to  keep  up  the  bank,  liable  for  the  destruction  of 
the  crops  of  such  tenant  caused  by  the  failure  of  the  grantee  to 
keep  the  wall  in  repair;  and  a  railroad  company  purchasing  land 
along  a  river  bank  having  upon  it  a  bank  or  wall  to  keep  back 
floods  or  high  tides  only  assumes  the  resj)onsibility  resting  on  its  ven- 
dor as  to  keeping  up  or  maintaining  such  wall  or  dam  as  a  protection 
to  other  adjoining  proprietors  as  well  as  to  the  occupants  of  the 
low  lands  situated  further  back." 

Where,  by  long-coniinued  natural  accretion  of  gravel,  the  bed 
of  a  river,  and  consequently  the  flow  of  water,  have  become  per- 
manently altered,  a  riparian  owner  has  no  right,  by  removing  the 
accretion,  to  restore  the  flow  of  water  to  its  former  state  as  to  ve- 
locity and  direction.* 

Where  a  stream  flows  through  two  adjoining  tracts  of  land,  the 
property  of  different  owners,  and  in  the  bed  of  the  stream  on  the 

^AMna  Ferry  Co.  v.  The  Imperial,  38  Fed.  Rep.  614,  3  L.  R.  A.  234,  note; 
Atlee  V.  Northwestern  Union  Packet  Co.  88  U.  S.  21  Wall.  3«'J,  22  L.  ed. 
619. 

^Barnes  v.  Marshall,  68  Cal.  569;  Oerrish  v.  Clough,  48  N.  H.  9;  Rex  v.  Pag- 
ham,  8  Barn.  &  C.  355;  Rex  v.  Trafford,  1  Barn.  &  Ad.  874,  8  Bing.  204. 

^  ^Crawford  v.  Ramho,  44  Ohio  St.  279,  4  West.  Rep.  445;  Avery  v.  Empire 
Woolen  Co.  83  N.  Y.  582;  Harding  v.  Whitney,  40  lud.  379;  Rix  v.  John- 
son. 5  N.  H.  520;  Durwell  v.  Uobson,  12  Gratt.  322. 

^Savannah,  F.  &  W.  R.  Co.  v.  Lawton,  75  Ga.  192. 

'^Withers  v.  Purchase,  60  L.  T.  N.  S.  819,  40  Alb.  L.  J.  214. 


462  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

upper  tract  there  is  a  natural  ledge  of  rock  whicli  retards  the 
flow  of  the  water  so  as  to  protect  the  lower  tract  from  overflow, 
the  proprietor  of  the  ujDper  tract  has  no  right  to  remove  such  ledge 
of  rock,  and  thereby  so  vary  the  natural  flow  of  the  stream  as  to 
occasion  damage  to  the  lower  tract  by  causing  water  and  sand  to 
overspread  portions  of  the  same,  which,  but  for  the  alteration, 
would  not  be  so  affected.  And  this  is  true,  although  there  be  no 
damage  at  the  point  where  the  stream  enters  the  lower  tract,  but 
only  further  down.' 

One  removing  obstructions  from  a  stream,  under  a  license  so  to 
do,  for  the  privilege  of  turning  other  waters  into  it,  and  not  for 
the  right  to  use  the  natural  flow  of  the  water,  acquires  thereby  no 
holding  adverse  to  a  lower  holder  who  has  the  right  to  use  the 
natural  flow  of  the  water."  And  he  who  obtains  from  another 
who  has  the  right  to  conduct  through  a  natural  stream  waters  arti- 
ficially carried  to  it,  a  license  to  remove  obstructions  in  the  stream 
and  to  turn  water  into  it  for  his  own  use,  is  not  entitled  to  take 
out  more  water  than  he  turns  into  it,  to  the  prejudice  of  the  rights 
of  the  other  party,  who  is  a  lower  owner.^ 

A  grantee  of  water  privileges,  who  by  express  stipulation  is 
without  right  to  dam  up  the  water  so  as  in  any  manner  to  over- 
flow or  injure  a  certain  spring  on  the  premises,  cannot  obstruct  or 
affect  it  injuriously  by  erecting  a  dam  or  embankment  across  its 
outlet,  and  compressing  the  water  in  its  passage  througli  the  same, 
within  a  narrow  and  confined  channel,  although  at  the  date  of  the 
grant  the  spring  was  not  flowing  naturally,  but  had  artificial  works 
across  the  outlet  which  retarded  the  flow.  The  owner,  not  having 
covenanted  to  keep  his  spring  in  an  artificial  condition,  could  let 
it  revert  to  its  natural  condition  without  subjecting  it  to  be  over- 
flowed or  otherwise  injured  by  dams  or  obstructions  thereafter 
erected.  That  he  had  obstructed  it  himself  was  no  license  to  an- 
other to  do  it.*  An  owner  of  the  land  on  both  sides  of  a  fresh- 
water stream  may  build  a  bridge  for  his  own  use,  provided  he  does 
it  so  as  not  to  interfere  with  the  public  easement,  without  any  au- 
thority from  the  Legislature  and  even  in  defiance  of  a  legislative 

^  Grant  v.  Kuglar,  81  Ga.  637,  3  L.  R.  A.  600. 

2  ^Paige  v.  Rocky  Ford  Canal  &  Irrig.  Co.  «3  Cal.  80. 

*Ford  V.  Lukeiis,  81  Ga.  633. 


Chap.  XXL]       OBSTRUCTIONS   TO   THE    FLOW    OF    WATERS.  40lJ 

prohi1)ition.  A  fresli-water  stream  is  held  in  Xew  York,*  al- 
though navigable  in  fact,  to  be  the  private  property  of  the  riparian 
owner,  and  he  has  a  right  to  use  the  land  and  water  of  the  river 
in  any  way  not  inconsistent  with  the  jniblic  easement  for  naviga- 
tion and  floating  logs.  But  without  legislative  authority  he  can- 
not maintain  a  bridge  for  public  or  general  use,  because  pul)Hc 
highways  and  toll  bridges  are  subject  to  legislative  regulation  and 
control.' 

Obstructions  of  navigable  rivers  in  aid  of  commerce  which  do 
not  materially  injure  the  navigation  are  not  nuisances.'  Eveiy 
bridge  over  a  river  is  not  necessarily  a  nuisance.^  The  obstruc- 
tion to  navigation  must  be  plainly  a  nuisance,  before  it  can  be  re- 
moved by  decree.'  If  the  erection  is  for  a  public  purpose,  and 
produces  a  public  benefit,  and  is  in  a  reasonable  situation,  and  a 
reasonable  space  is  left  for  the  passage  of  vessels,  then  it  is  not  an 
unreasonable  obstruction. °  Temporary  inconvenience  to  private 
parties,  in  common  with  the  public  in  general,  occasioned  by  the 
exercise  of  a  right  conferred  by  law  for  the  benefit  of  the  public, 
gives  them  no  right  to  damages.  It  is  damnum  absque  injuria? 
The  distance  of  IGO  feet  between  the  jDiers  of  the  bridge 
across  the  Missouri  Eiver  at  Kansas  Cit3%  required  by  the  Act 
of  Congress  of  July  25,  18S6,  is  obtained  by  measuring  along 
a  line  between  the  piers,  drawn  perpendicularly  to  their  faces  and 
the  current  of  the  river.* 

A  State  Legislature  may  at  least  authorize  the  building  of  a 

'^  Canal  Comrs.  v.  People,  5  Wend.  423,  448;  Pennsylvania  v.  Wheeling  <fe  B. 
Bridge  Co.  59  U.  S.  18  How.  421,  15  L.  ed.  435;  Morgan  v.  King,  35  N. 
Y.  454;  Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178. 

^The  Binghamton  Bridge,  70  U.  S.  3  Wall.  71,  18  L.  ed.  142;  Chenango 
Bridge  Co.  v.  Paige,  83  N.  Y.  178.  See  Ex  parte  Jenningn,  6  Cow.  5',>7, 
543;  People  v.  Outcheas,  48  Barb.  656;  People  v.  Piatt,  17  Johns.  195:  Fort 
Plain  Bridge  Co.  v.  Smith,  30  N.  Y.  44;  Walker  v.  Board  of  Public  Works, 
16  Ohio,  540;  Jones  v.  Pettibone,  2  Wis.  308;  Walker  y.  Shepardsvn,  4:  Wis. 
486;  Fates  v.  Milwaukee,  77  U.  S.  10  Wall.  497,  19  L.  ed.  984;  Hepburn's 
Case,  3  Bland,  Ch.  98;  Power  v.  Athens,  99  N.  Y.  592,  598. 

^Harlan  &  H.  Co.  v.  Paschall,  5  Del.  Ch.  438. 

"•Circuit  court  decision  affirmed  on  equal  division,  Milnor  v.  New  Jersey  R. 
&  Transp.  Co.  70  U.  S.  3  Wall. '721,  16  L.  ed.  799. 

6  ^Mississippi  &  M.  R.  Co.  v.  Ward,  67  U.  S.  2  Black,  485.  17  L.  ed.  311. 

■>namUton  v.  Vicksburg,  8.  &  P.  R.  Co.  119  U.  S.  280,  30  L.  ed.  393. 

^Hannibal  &  St.  J.  R.  Co.  v.  Missouri  River  Packet  Co.  125  U.  S.  260,  31  L. 
ed.  731 ;  67.  Louis  &  St.  P.  Packet  Co.  v.  Keokuk  cfi  U.  Bridge  Co.  31  Fed. 
Rep.  755. 


464  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

bridge  or  other  structure  tending  to  obstruct  tlie  navigation  of  a 
navigable  river,  which  is  altogether  within  its  own  boundary;  and 
it  is  only  when  Congress,  by  virtue  of  the  constitutional  provision, 
acts  as  to  such  obstructions  that  its  will  must  be  obeyed  so  far  as 
may  be  necessary  to  insure  free  navigation.*  In  fact,  many  of  the 
cases  hold  that  the  obstruction  may  go  to  the  extent  of  entirely 
destroying  the  navigation  of  the  stream.'' 

The  power  to  authorize  the  building  of  bridges  over  navigable 
streams  within  the  State  is  not  to  be  found  in  the  Federal  Consti- 
tution. It  has  not  been  taken  from  the  States.^  Except  as  against 
the  action  of  Congress,  the  power  of  a  State  is  plenary  over  the 
form  and  chai'acter  of  a  bridge,  irrespective  of  its  effect  upon  nav- 
igation.'' An  Act  of  Congress,  admitting  a  State,  which  provides 
that  a  river  shall  be  a  common  highway  and  forever  free,  does  not 
affect  the  power  of  the  State  in  respect  to  bridges  over  it.^  Tlie 
erection  of  a  bridge  over  the  "Willamette  River  at  Portland  is  not 
a  violation  of  the  Admission  Act  of  Oregon.'  A  bridge  con- 
structed over  a  navigable  river,  in  accordance  with  the  legislation 
of  both  the  state  and  federal  governments,  must  be  deemed  a 
lawful  structure,  however  much  it  may  interfere  with  the  public 
right  of  navigation.''  Under  the  Pliode  Island  Act  authorizing 
the  construction  of  a  bridge  over  a  river,  in  such  place  and  man- 
ner as  commissioners  might  determine,  they  could  erect  a  bridge 
high  above  the  river,  and  extending  beyond  the  bank  to  an  avenue, 
there  establisliing  an  abutment.*  The  Statutes  of  New  York  au- 
thorize boards  of  supervisors,  upon  the  application  of  one  town, 
to  legally  require  a  stream  forming  the  boundary  between  two 
towns  to  be  bridged  at  the  joint  expense  of  said  towns,  and  com- 
pelling each  town  to  raise  money  to  pay  its  share  of  the  expense 
by  an  issue  of  bonds."     Where  a  bridge  was  originally  constructed, 

^Willmi  V.  Black  Bird  Creek  Marsh  Go.  27  U.  S.  2  Pet.  245,  7  L.  ed.  412; 
Cardwellv.  American  River  Bridge  Co.  113  U.  S.  205,  28  L.  ed.  959;  North- 
ern Transp.  Go.  v.  Chicago,  99  U.  S.  635,  25  L.  ed.  836. 

^ Green  &  B.  R.  Nav.  Go.   v.  Ghesapeake,  0.  cfi  S.  W.  R.  Co.  (Ky.  Dec.  ll, 
2  L.  R.  A.  540;  Leisy  v.  Hardin,  135  U.  S.  100,  120,  34  L.  ed.  128,  136. 

^Oilman  v.  P/iiladelphia,  70  U.  S.  3  Wall.  713,  18  L.  ed.  96. 

*  ^Hamilton  v.  Vicksbiirg,  8.  &  P.  R.  Go.  119  U.  S.  280,  30  L.  ed.  393. 

« Willamette  Iron  Bridge  Go.  v.  Hatch,  125  U.  S.  1,  31  L.  ed.  629. 

UlUler  V.  New  York  City,  109  U.  S.  385,  27  L.  ed-.  971. 

^Sullivan  v.  Webster,  16  R.  I. ,  5  New  Eug.  Rep.  331. 

^Kirkwood  v.  Newburg,  45  Hun,  823. 


Chap.  XXI.]       OBSTRUCTIONS   TO   THE    FLOW    OF    WATERS.  405 

and  has  for  a  number  of  years  been  maintained,  by  two  adjoin iiii^ 
towns,  upon  a  highway  running  along  the  line  between  the  town.s, 
it  is  the  duty  of  both  towns  to  keep  it  in  repair;  and  both  are  lia- 
ble for  injuries  sustained  by  reason  of  its  being  out  of  repair.' 

Congress  can  legalize  a  bridge  over  a  navigable  river  under  the 
power  to  regulate  commerce."  It  may  declare  that,  upon  a  cer- 
tain fact  being  established,  a  bridge  over  a  navigable  river  shall  be 
deemed  a  lawful  structure,  and  employ  the  Secretary  of  War  as  an 
aiicnt  to  ascertain  that  fact.  It  thereby  abdicates  none  of  its  au- 
thority.' Congress  can  lawfully  confer  authority  to  construct  a 
l)ridge  across  navigable  waters  for  the  purpose  of  interstate  com- 
merce, although  one  of  the  States  within  which  the  waters  are  di- 
rectly situated  does  not  consent,  but  protests  against  the  erection 
of  the  bridge.*  Yet  the  fact  that  a  bridge  over  navigable  waters 
has  been  sanctioned  by  Congress,  or  by  the  State  within  whose 
limits  it  is  situated,  and  that  it  has  been  built  by  a  person  or  cor- 
poration authorized  to  build  it,  does  not  render  it  a  legal  structure 
unless,  as  built,  it  conforms  to  the  terms  and  limitations  of  the  au- 
thority.' The  obstruction  of  navigation  by  the  repairing  of  a 
bridge  over  a  river  in  replacing  a  draw  span,  which  bridge  is  main- 
tained under  lawful  authority,  creates  no  right  of  action  in  favor 
of  parties  entitled  to  navigate  the  river,  if  the  repairs  are  made  in 
such  a  manner  as  not  unreasonably  to  obstruct  tlie  navigation,  al- 
though it  was  possible  to  have  opened  the  draw  and  constructed 
the  new  one  upon  the  edge  of  the  river,  thus  avoiding  all  obstruc- 
tion to  navigation,  but  which  M-ould  have  involved  unreasonal)le 
delay  and  expense.*  An  Act  of  Congress  to  legalize  a  bridge 
across  a  navigable  river,  passed  pending  a  suit  to  remove  the  bridge 
as  a  nuisance,  gives  the  rule  of  decision  for  the  court  at  the  final 
hearing.'  An  Act  of  Congress  declaring  a  bridge  over  the  Ohio 
River  a  lawful  structure  supersedes  a  previous  decree  of  the  court 

^Oeity  V.  Eamlin,  46  Hun,  1. 

^Gray  v.  Chicago,  I.  &  K  R.  Co.  77  U.  S.  10  Wall.  454,  19  L.  ed.  009. 

^MUler  V.  New  York  City,  109  U.  S.  385,  27  L.  ed.  971. 

<  ^Pennsyloania  B.  Co.  v.  Baltimore  &  N.  7.  R.  Co.  37  Fed.  Rep.  129. 

^Qreen  &  B.  R.  Nav.  Co.  v.  Chesapeake,  0.  cfi  S.  W.  R.  Co.  (Ivy.  Dec.  11, 1888) 

2  L.  R.  A.  540;  Oreen.&  B.  R.  Nav.  Co.  v.  Palmer,  83  Ky.  646. 
''Gray  v.  Chicago,  1.  &  N.  R.  Co.  11  U.  S.  10  Wall.  454,  19  L.  ed.  969. 
30 


4G6  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

declarino;  it  an  obstruction  to  navigation  and  directing  its  removal.' 
"Where  Congress  gave  a  license  to  erect  and  maintain  a  bridge 
across  the  Ohio,  the  bridge  company,  by  accepting  its  provisions, 
became  subject  to  the  reservation  of  power  in  Congress  to  vt^itli- 
draw  the  license  and  to  direct  necessary  alteration  of  the  bridge.* 

The  paramount  power  of  regulating  bridges  over  the  navigable 
waters  of  the  United  States  —  as  the  Ohio  River  —  is  in  Congress 
and  free  from  the  interference  of  the  States.^  The  power  of 
Congress  to  build  a  bridge,  or  authorize  a  bridge  to  be  built,  across 
water  dividing  two  States,  is  altogether  independent  of  the  consent 
and  concurrence  of  the  state  governments.*  Congress  can  author- 
ize a  private  corporation  to  occupy  navigable  waters  and  construct 
a  bridge  across  the  same,  for  purposes  of  interstate  commerce,, 
without  consent  of  any  State.*  The  Ohio  is  a  navigable  stream 
and  subject  to  the  commercial  power  of  Congress ;  and  if  the  Act 
of  a  State  authorized  the  creation  of  an  obstruction,  it  would  be 
no  justification."  The  Act  of  Congress  approved  June  16,  1SS6,. 
authorizing  the  construction  of  abridge  across  Staten  Island  Sound,, 
known  as  "  Arthur  Kill,"  is  within  the  power  of  Congress  to  regu- 
late commerce,  and  is  valid.^  "When  Congress  declares  a  bridge 
across  a  navigable  river  an  unlawful  structure,  no  state  legislation 
can  make  it  lawful.* 

A  railroad  company  chartered  in  another  State  may  be  obliged, 
by  the  condition  of  a  state  statute  which  recognizes  it  as  a  corpo- 
ration of  that  State,  to  construct  and  maintain  a  drawbridge  in  the 
channel  of  a  river  which  is  crossed  by  the  company's  road,  on  tlie 
line  between  two  States.'     If  by  the  act  of  the  government  sub- 

^Pennsylvania  v.  Wheeling  &  B.  Bridge  Go.  59  U.  S.  18  How.  431,  15  L.  ed. 

435. 
2  ^Newport  <&  C.  Bridge  Co.  v.  United  States,  105  U.  S.  470,  36  L.  ed.  114B. 
^Stockton  V.  Baltimore  &  N.  Y.  B.   Go.  1  Inters.   Com.   Rep.  411,  32  Fed. 

Rep.  9. 
^Decker  v.  Baltimore   &  K  Y.  R.  Go.  1  Inters.  Com.  Rep.  434,  30  Fed.  Rep. 

723;  Stockton  v.  BaltiTnore  <&  iV.  Y.  B.  Co.  1  Inters.  Com.  Rep.  411,  32 

Fed.  Rep.  9. 
^Pennsylvania  v.  Wheeling  &  B.  Bridge  Go.  54  U.  S.  13  How.  518,  14  L.  ed. 

249. 
"* Stockton  V.  Baltimore  &  N.  Y.    R.  Co.  1  Inters.   Com.  Rep.  411,  32  Fed. 

Rep.  9. 
^Cardicelly.  American  River  Bridge  Go.  113  U.  S.  205,  28  L.  ed.  959. 
^Mw  Orleans,  M.  <&  T.  R.  Co.  v.  Mississippi,  112  U.  S.  12,  28  L.  ed.  619. 


Chap.  XXI.]       OBSTRUCTIONS    TO    THE    FLOW    OF    WATERS.  407 

sequent  to  the  building  of  tlie  bridge,  or  by  any  utlier  means  not 
within  the  control  of  the  company  erecting  the  bridge,  the  cur- 
rents were  so  radically  changed  as  to  materially  obstruct  the  navi- 
gation and  make  the  passage  of  the  draw  dangerous,  it  would  have 
been  incumbent  on  the  bridge  company  to  change  the  piers  in  con- 
formity to  the  new  condition  of  things;  but  if  the  change  in  the 
current  to  the  draw. by  the  excavation  was  slight,  the  failure  to 
exercise  proper  skill  in  such  erection  will  constitute  such  negli- 
gence, though  ever  so  much  care  is  used  in  its  erection.  The  fail- 
ure to  build  the  bridge  in  the  manner  prescribed  by  law  is  negli- 
gence j^e/*  5(3.'  Where,  before  a  bridge  over  a  navigable  stream, 
authorized  under  a  general  Act,  was  built,  a  canal  was  ordered  by 
the  government  to  be  constructed,  it  became  the  duty  of  the 
bridge  company  to  plan  and  build  their  bridge  with  reference  to 
the  canal  through  wliich  the  principal  traffic  of  the  river  would 
pass;  but  the  company  were  only  required  to  use  reasonable  dili- 
gence and  skill  in  forming  and  executing  their  plans,  and  were  not 
required  to  foresee  and  absolutely  anticipate  the  effect  upon  the 
current  of  the  river  of  a  factor  not  yet  in  existence ;  and  if  the 
piers  of  the  bridge  were  made  parallel,  as  far  as  possible,  with  the 
currents  of  the  river  and  the  necessities  of  the  canal,  with  the  re- 
sult that  the  passage  of  the  draw  is  reasonably  safe,  negligence 
cannot  be  imputed  to  the  company.^ 

A  railroad  company  which  causes  lands  to  be  overflowed  by  ob- 
structing a  watercourse  by  its  levees,  trestles,  etc.,  is  liable  for  the 
injury,  although  the  flow  of  water  and  the  accumulations  in  the 
stream  were  increased  by  natural  causes, —  as,  by  the  clearing  of 
the  land  or  loosening  of  the  soil  by  cultivation.'  Where  a  rail- 
road company  builds  a  road  across  a  natural  watercourse,  it  is  its 
duty  to  provide  for  a  discharge  of  all  water  that  may  flow  through 
such  watercourse,  although  the  amount  of  water  be  subsequently 
increased  by  constructing  drainage  ditches.* 


>  *St.  Louis  &  St.   P.  Pricket   Co.  v.  Keokuk  dk  B.  Bridge  Co.  31  Fed.  Rep. 

755. 
^Mississippi  &  T.  R.  Co.  v.  Archibald,  67  Miss.  38. 
*Eankakee  &  S.  R.  Co.  v.  Iloraa,  131  111.  2a8. 


468  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

Section  ^^.— Relief  in  Case  of  Obstruction  to  Flow 

of  Stream. 

ti.  By  Indictment  or  Information. 

An  unlawful  obstruction  to  navigation,  being  a  common  nui- 
sance, is  remediable  by  indictment.'  In  some  of  the  States  the 
proper  proceeding  in  equity  to  restrain  a  public  nuisance  is  by  in- 
formation by  the  attorney-general.''  But  the  statutory  authority' 
given  to  an  aqueduct  board,  to  sue  in  equity  to  restrain  nuisances 
to  watercourses  connected  with  its  works,  does  not  constitute  it  a 
public  agent  to  sue  to  restrain  a  public  nuisance,  but  merely  gives 
it  power  to  sue  as  an  individual  for  the  protection  of  its  private 
property.*  The  fact  that  keeping  a  nuisance  is  a  crime  does  not 
deprive  a  court  of  equity  of  the  power  to  abate  the  nuisance." 
But  a  federal  court  cannot  grant  an  injunction  to  prevent  munic- 
ipal authorities  from  interfering  with  the  construction  of  obstruc- 
tions to  navigation  in  a  navigable  river,  in  the  absence  of  authority 

^ Henry  v.  Newhurypori,  149  Mass.  582,  5  L.  R.  A.  179;  ante,  p.  75.  note  1; 

3  Bl.  Com.  chap.  13;  1  Chitty,  Pr.  383;  Respuhlica  v.  Arnold,  3  Yeates, 
417;  Hale,  De  Jure  Maris,  chap.  3,  and  De  Portibus  Maris,  chap.  7;  Har- 
grave,  Law  Tracts,  9,  88;  Rex  v.  Russell,  6  Barn.  &  C  566;  Rex  v.  Ward, 

4  Ad.  &  El.  384;  Rex  v.  Orosvenor,  2  Stark.  511;  Rex  v.  Morris,  1  Barn. 
&  Ad.  441;  Rex  v.  Tindall,  6  Ad.  &  El.  143;  Reg.  v.  Beits,  16  Q.  B.  1023; 
Reg.  V.  Randall,  1  Car.  &  M.  496;  Com.  v.  Wright,  Thach.  Cr.  Cas.  211; 
Ronayne  v.  Loranger,  66  Mich.  373,  10  West.  Rep.  523;  Com.  v.  Alger,  7 
Cush.  53;  People  v.Vanderhilt,  26  N.  Y.  287;  P&jple  v.  Horton,  64  N.  Y. 
610;  Gates  v.  BUncoe,  2  Dana,  158;  Walker  v.  Hliepardson,  2  Wis.  384; 
Allegheny  V.  Zimmerman,  95  Pa.  287;  State  v.  South  Carolina  R.  Co.  28 
S.  C.  23. 

^Newark  Aqueduct  Board  v.  Passaic,  45  N.  J.  Eq.  393;  Atty-Gen.  v.  Burridge, 
10  Price,  350;  Atty-Gen.  v.  Parmeter,  10  Price,  378,  411;  AttyGen.  v. 
Terry,  L.  R.  9  Ch.  423;  Atty-Gen.  v.  Lonsdale,  L.  R.  7  Eq.  377;  Atty-Gen. 
V.  Johnson,  2  Wils.  Ch.  87;  AttyGen.  v.  Richards,  1  Anstr.  G03;  Atty- 
Gen.  V.  Tomline,  L.  R.  12  Ch.  Div.  214;  Atty-Gen.  v.  Cleaver,  18  Ves.  Jr. 
211;  Georgetown  v.  Alexandria  Canal  Co.  37  U.  S.  12  Pet.  91.  9  L.  ed. 
1012;  Atty-Gen.  v.  Utica  Ins.  Co.  2  Johns.  Ch.  371,  382.  1  K  Y.  Ch.  L. 
ed.  412,  418;  Atty-Gen.  v.  Cohoes  Co.  6  Paige,  133,  3  N.  Y.  Ch.  L.  ed. 
928;  Tolo  County  v.  Sacramento,  36  Cal.  193;  Eden,  Inj.  chap.  1;  2  Story, 
Eq.  Jur.  ^%2\et  seq.:  Rowe  v.  Granite  Bridge  Corp.  21  Pick.  344;  Atty- 
Gen. V.  Salem,  103  Mass.  138;  Haskell  v.  New  Bedford,  108  Mass.  208,  216; 
Atty-Gen.  v.  BostonWJuirf  Co.  12  Gray,  553;  AttyGen.  v.  New  Jersey  R. 
&  Transp.  Co.  3  N.  J.  Eq.  136;  Newark  PL  Road  <&  Ferry  Co.  v.  Elmer, 
9  N.  J.  Eq.  755;  Atty-Gen.  v.  Paterson  &  H.  R.  R.  Co.  9  N.  J.  Eq.  526; 
Giffoi'd  V.  New  Jersey  R.  &  Transp.  Co.  10  N.  J.  Eq.  177;  Atty-Gen.  v. 
Delaware  &  B.  B.  R.  Co.  27  N.  J.  Eq.  1,  631;  Allen  -v.  Monmouth  County, 
13  N.  J.  Eq.  68;  Gould,  Waters,  217. 

^Newark  Aqueduct  Board  v.  Passaic,  45  N.  J.  Eq.  393. 

*  Atty-Gen.  v.  Hunter,  1  Dev.  Eq.  12;  People  v.  St.  Louis,  10  111.  351;  EweU 
V.  Greenwood,  26  Iowa,  377;  Minke  v.  Hopeman,  87  111.  450. 


Chap.  XXL]    RELIEF  FROM  OBSTRUCTION  TO    FLOW    OF    STREAM.     460 

by  Act  of  Congress.'  When  the  nuisance  causes  botli  a  public 
and  private  injury,  a  suit  in  equity  may  be  brought  by  informa- 
tion and  bill." 

b.  Individual  Right  to  Abate. 

Expenses  voluntarily  incurred  in  making  alterations  in  a  vessel 
so  that  it  will  pass  under  a  bridge  so  placed  over  a  navigable  river 
as  to  obstruct  navigation,  and  thus  constitute  a  public  nuisance, 
do  not  result  directly  from  the  obstruction  so  as  to  bring  the  per- 
son bearing  them  within  the  rule  that  one  may  recover  damages 
for  injuries  caused  by  a  public  nuisance,  if  such  injuries  are  pecu- 
liar to  himself,  and  result  directly  from  the  nuisance  and  differ  in 
kind  from  those  sustained  by  the  public  generally.*  In  New  York 
any  expense  or  delay,  however  trifling,  incurred  by  one  member 
of  the  public  in  removing  an  unlawful  obstruction  in  a  highway 
has  been  held  to  be  ground  for  an  action." 

The  right  of  an  individual  citizen  to  abate  a  public  nuisance 
arises  only  when  it  becomes  an  obstruction  to  the  exercise  oi  his 
private  rights."  An  owner  of  lower  lands  may  abate  as  a  nuisance 
an  embankment  erected  by  an  upper  owner  upon  his  own  land  to 
increase  the  disehai-ge  of  surface  water  on  the  lower  owner's  lands 
for  the  purpose  of  coercing  the  latter  to  allow  the  water  to  flow 
over  his  lands  as  it  had  been  permitted  to  flow  for  some  years,  un- 
der a  verbal  license  and  tacit  consent  of  a  former  owner,  provided 
he  does  not  injure  the  upper  owner's  land.'  A  private  individual 
may  not  lawfully  abate  a  public  nuisance,  with  no  purpose  or  ob- 
ject other  than  to  have  it  removed.* 

The  true  theory  of  abatement  of  nuisances  is  that  an  individual 

^Texas  &  P.  R.  Co.  v.  Neio  Orleans,  40  Fed.  Rep.  111. 

^Atty-Gen.   v.  Lonsdale,  L.  R.  7  Eq.  377;  Atty-Gen.  v.  Forbes,  2  Myl.  &  Cr. 

123;  Gould,  Waters,  218. 
^Scmth  Carolina  Steamboat   Co.  v.  South  Carolina  R.  Co.  30  S.  C.  539,  4  L.  R. 

A.  209. 
*Pieroe  v.  Dar't,  7  Cow.  609;  Lansing  v.  Wiswall,  5  Denio,  213;  Lansinr/  v. 

Smith.  4  Wend.  9,  8  Cow.  146;  Hudson  River  R.  Co.  v.  Loeb,  7  Robt.  418. 
''Brown  v.  De  Groff,  50  N.  J.  L.  409,  12  Cent.  Rep.  818;  Atwood  v.  Partree, 

56  Conn.  80,  6  New  Eng.  Rep.  465;  Gould,  Waters,  217. 
*White  V.  Sheldon  (Sup.  Ct.  Dec.  80,  1889)  28  N.  Y.  S.  R.  475. 
"^Dimes  v.  Petley,  15  Q.  B.  276;  Bateman  v.  Bluck,  18  Q.  B.  870;  Harrower  v. 

Ritson,  37  Barb.  301;  Gnffith  v.  McCullnm,  46  Barb.  561;  Brown  v.  De- 

Groff,  50  N.  J.  L.  409,  12  Cent.  Rep.  818. 


470  IMPOSED   DUTIES,    PERSONAL.  [Part    II. 

citizen  may  abate  a  private  luiisance  injurious  to  him,  when  he 
could  also  bring  an  action  ;  and  also  when  a  cpnnnon  nuisance  ob- 
structs his  individual  right,  he  may  remove  it  to  enable  him  to  en- 
joy that  right;  and  he  cannot  be  called  in  question  for  so  doing.' 
So  where  one  is  responsible  as  licensor,  for  what  has  become  a 
nuisance,  he  may  abate  it.  The  occupant,  not  only,  but  the  owner 
of  a  place,  like  a  house  or  mill,  erected  to  the  nuisance  of  another, 
is  liable  in  an  action  on  the  case,  which  may  be  brought  by  the 
successive  owners  and  occupants  of  the  place  whei-e  the  injury  is 
sustained.  In  short,  the  continuance  and  very  use  of  that  which, 
in  its  erection  or  changed  use,  was  or  is  a  nuisance,  is  a  new  nui- 
sance for  which  a  party  has  a  remedy  for  his  damages.^  Thci'e- 
fore  a  surface-water  drain  over  another's  land,  used  under  a  license, 
when  used  to  carry  off  noxious  matter  and  so  becoming  a  public 
nuisance,  may  be  closed  up  by  the  licensor  on  notice;  and  the 
remedy  of  the  public  authorities  upon  continued  use  by  the  licensee 
thereafter,  causing  an  overflow  of  the  highway,  is  against  the  li- 
censee, and  not  against  the  licensor.^ 

The  principle  that  a  party  may  sometimes  abate  an  obstruction 
or  nuisance  in  a  highway,  without  waiting  for  the  slow  process  of 
the  law,  has  no  application  to  the  removal  of  a  dam  in  a  navigable 
river,  because  it  causes  shoaling  in  the  river  below  it,  where  it  has 
been  built  under  authority  of  a  special  statute,  one  purpose  of 
which  was  to  allow  the  redemption  of  certain  land  for  agricultural 
purposes,  and  which  makes  provision  for  a  remedy  in  case  of  such 
shoaling.  A  corporation  might  be  indictable  which  was  author- 
ized to  maintain  a  bridge  and  keep  it  in  safe  and  proper  condition 
for  use,  for  failing  to  keep  it  in  proper  repair;  but  it  could  not 
therefore  be  rightfully  destroyed  by  one  who  had  occasion  to  pass 
over  it." 

In  Artmdel  v.  JfeCidloch,  10  Mass.  70,  a  bridge,  without  any 
authority  of  law^,  had  been  erected  across  a  navigable  stream,  and 
it  was  held  that  one  having  occasion  to  pass  with  his  vessel  might 
lawfully  break  through  the  same,  doing  no  more  damage  than  was 

^Brown  v.  Perkins,  13  Gray,  100:  Miller  v.  Formnn,  37  N.  J.  L.  56;  Brown 

V.  De  Graff,  50  N.  J.  L.  409,  12  Cent.  Rep.  818. 
^Staple  V.  Spring,  10  Mass.  73. 
^Crosland  v.  Pottsville,  126  Pa.  511. 
*Com.  V.  Central  Bridge  Corp.  12  Cush.  242.  244. 


Chap.  XXL]    RELIEF    FROM  OBSTRUCTION  TO    FLOW    OF    STREAM.    471 

necessary  for  his  passage.  But  a  dam  does  not  become  a  wholly 
unlawful  structure  because  the  pro})rietors  have  neglected  to  per- 
form an  important  but  subordinate  duty  in  its  management,  by 
the  nonperformance  of  which,  and  not  by  the  structure  itself,  in- 
jury might  result  to  others.  Where  the  provisions  of  the  statute 
made  to  enforce  the  performance  of  this  duty  are  ample,  even  if 
the  necessity  had  been  immediate,  that  the  accumulation,  as  in 
case  of  a  dam,  should  be  removed,  yet  where  it  does  not  appear 
that  the  destruction  of  the  dam  would  have  enabled  persons  at 
once  to  use  the  stream  below  the  dam,  or  that  at  the  time  they 
had  any  occasion  so  to  do,  and  they  were  not  then  navigating  the 
stream,  and  it  is  not  shown  that  the  removal  of  the  dam  would 
have  removed  the  shoaling,  they  sustained  no  special  or  peculiar 
■damage  different  from  that  of  the  rest  of  the  community.* 

c.  Private  Right  of  Action  for  Obstructing  Water- 
course. 

An  individual  who  has  sustained  any  particular,  special  damage 
over  and  above  that  sustained  by  the  public  generally  as  the  direct 
result  of  the  obstruction  of  a  navigable  river  or  highway  may  main- 
tain a  civil  action  to  recover  damages  for  such  injury.  In  case  of 
public  nuisance,  the  plaintiff  must  aver  special  damages  to  him, 
inasmuch  as  the  law  does  not  presume  or  imply  damage  to  any 
particular  individual  from  the  public  offense."  The  particular 
damage  is  the  gist  of  the  action,  and  must  be  specially  set  forth  in 
the  declaration.'  In  this  respect  a  chartered  corporation  stands 
uj)on  precisely  the  same  footing  as  a  private  individual.  Its  rights 
are  no  greater  and  no  less  than  those  of  the  individual  and  are  to 
be  tested  by  the  same  principle.* 

•Coot.  v.  Tolman,  149  Mass.  229,  3  L.  R.  A.  747. 

'^Hai't  V.  Evans,  8  Pa.  13;  1  Sutherland,  Damages,  766. 

^Baker  v.  Boston,  12  Pick.  184,  196;  Atkins  v.  Bordman,  2  Met.  457;  TTnnck 
V.  Wachter,  34  Md.  265;  Bazter  v.Winooski  Turnp.  Co.  22  Vt.  114;  HhUy. 
Kitson,  4  Chand.  (Wis.)  20;  Ch'eene  v.  Nunnemncher,  36  Wis.  50;  Powers 
V.  Irish,  23  Mich.  429;  Dwinel  v.  Veazie,  44  Me.  167,  175;  Memphis  <6 
0.  R.  Co.  V.  Hicks,  5  Sneed,  427;  Roseburg  v.  Abraham,  8  Or.  509;  Far- 
relly  v.  Cincinnati,  2  Disney  (Ohio)  516;  Taylor  v.  Monroe,  43  Conn.  36; 
Tomlinson  v.  Derby,  43  Conn.  562;  South  Carolina  v.  Oeorqia,  93  U.  S.  4, 
14,  23  L.  ed.  782,  785;  Smith  v.  McConathy,  11  Mo.  517;  Payne  v.  McKin- 
ley,  54  Cal.  532. 

*South  Carolina  Steamboat  Co.  v.  South  Carolina  R.  Co.  30  S.  C.  539,  4  L. 
R.  A.  209. 


472  IMPOSED  DUTIES,  PERSONAL.         '  [Part  II. 

There  is  considerable  conflict  in  the  authorities  as  to  what  will 
constitute  such  special  or  particular  injury  beyond  that  sustained 
by  the  public  generally  as  will  authorize  a  suit  by  an  individual. 
The  true  rule  to  be  deduced  from  these  authorities  seems  to  be 
that  the  injury  must  be  particular, — as  several  of  the  cases  express 
it,  "  special  or  peculiar," —  must  result  directly  from  the  ob- 
struction and  not  as  a  secondary  consequence  ^thereof,  and  must 
differ  in  kind  and  not  merely  in  degree  or  extent  from  that  which 
the  general  public  sustain.' 

In  Carey  v.  Brooks^  1  Hill,  L.  365,  the  action  was  brought  by  a 
private  individual  to  recover  damages  for  a  public  nuisance  in  ob- 
structing the  navigation  of  a  stream,  under  the  allegation  that  the 
plaintiff  had  incurred  expense  in  clearing  out  the  channel  of  the 
stream  and  had  suffered  loss  in  transporting  his  lumber  to  market 
under  a  special  contract  to  deliver  it  within  a  specified  time.  It 
was  held  that  the  action  could  not  be  sustained  because  the  dam- 
age complained  of  was  not  such  as  would  justify  such  an  action, — 
quoting  the  rule  as  laid  down  in  Bacon's  Abridgement :  "  A 
particular  damage,  to  maintain  this  action,  ought  to  be  particular 
and  not  consequential;"  and  adding:  "This  seems  to  be  the  set- 
tled law  founded  on  the  inconvenience  of  allowing  a  separate 
action  to  every  individual  who  suffers  an  inconvenience  common 
to  many." 

In  Crouch  V.  Charleston  c&  S.  R.  Co.,  21  S.  C.  495,  the  action 
was  to  recover  damages  for  certain  injuries  sustained  by  the  plain- 
tiff's steamboat  passing  through  a  drawbridge,  erected  by  the  de- 
fendant across  a  navigable  stream,  plaintiff's  boat  having  struck 
the  bridge  in  passing  through  the  draw,  which  was  held  to  be  in- 
sufficient. The  injury  there  complained  of  was  peculiar  and  spec- 
ial to  plaintiff,  different  in  kind  from  that  sustained  by  the  public 
generally,  and  was  the  direct  result  of  an  obstruction  and  not  a 
mere  secondary  consequence  thereof.  That  case  was  like  the  case 
of  a  traveler  who,  in  attemj)ting  to  pass  an  obstruction  in  a  public 
highway,  is  thrown  from  his  horse  or  has  his  vehicle  upset  and 
broken,  or  his  horse  injured,  in  which  case  a  private  action  may 
unquestionably  be  maintained  to  recover  damages  for  such  injuries, 

^Barnes  v.  Ward,  9  C.  B.  393;  Hounsell  v.  Smyth,  7  C.  B.  N.  S.  731;  ante, 
p.  79,  note  1. 


Chap.  XXI.]  KELIEF  FROM  OBSTRUCTION  TO  FLOW  OF  STREAM.        ■i1l> 

as  they  differ  in  kind  from  those  suffered  by  the  general  public, 
and  are  the  direct  result  of  tlie  obstruction. 

In  uMcZauchlin  v.  Charlotte  <j&  S.  C.  E.  Co.,  5  Rich.  L.  5S3,  the 
complaint  was  for  the  nnauthorized  obstruction  of  a  public  street 
and  it  was  said  that,  to  sustain  such  a  complaint,  a  particular  direct 
damage  must  be  shown. 

It  was  held  in  Ewell  v.  Greemcood,  26  Iowa,  377 ;  Wilson  v. 
Sexon,  27  Iowa,  15,  and  ITonghmn  v.  Ilarmy,  33  Iowa,  203, — that 
the  plaintiffs  could  maintain  actions  to  abate  obstructions  in  public 
highways.  But  in  each  of  those  cases  the  plaintiff  suffered  injuries 
in  consequence  of  tlie  nuisance  not  sustained  by  th^  general  pub- 
lic, and  it  was  that  fact  which  gave  him  a  standing  in  the  court ; 
and  the  general  rule  was  recognized  in  each  of  the  cases.  Being 
delayed  for  hours  by  an  obstruction  on  a  highway,  and  thereby 
prevented  from  performing  the  same  journey  as  many  times  in  a 
day  as  if  the  obstruction  had  not  existed,  has  been  held  sufficient 
injury  to  maintain  an  action  against  the  obstructor.* 

\nlnnis  V.  Cedar  Rapids.  7.  F.  &  N.  TF".  R.  Co.,  76  Iowa,  165, 
2  L.  R.  A.  282,  it  appeared  that  the  plaintiff  was  a  resident  of  the 
Town  of  Emmetsburg,  which  was  situated  at  the  south  end  of  the 
lake,  and  was  the  owner  of  a  number  of  small  boats,  which  he  kept 
for  hire,  and  which  he  rented  to  others  for  use  on  the  lake.  They 
had  been  used  for  purposes  of  pleasure,  and  by  persons  engaged 
in  fishing,  and  were  not  adapted  to  any  other  use.  The  lake  was  five 
or  six  miles  long,  and  its  width  varied  from  one  fourth  to  three 
fourths  of  a  mile.  A  bridge  was  situated  about  one  mile  from  the 
south  end,  and  spanned  the  whole  width  of  the  lake  at  that  point. 
There  was  no  draw  or  opening  in  it,  and  the  bottom  timbers  were  so 
near  the  water  that  boats  could  not  safely  or  conveniently  pass  under 
it.  The  boat  house  and  landing  were  situated  at  the  south  end  next 
to  the  town,  and  that  was  the  only  pointof  convenient  access  to  tlie 
water  from  the  town,  and  the  part  of  the  lake  north  of  the  bridge 
was  better  adapted  to  boating  than  that  lying  south  of  it.  Tlie 
plaintiff's  grievance  was  that,  owing  to  the  obstruction  caused  by  the 
bridge,  the  business  of  boating  on  the  lake  had  greatly  fallen  off, 
and  as  a  consequence  his  business  had  been  impaired,  and  his  profits 
therefrom  diminished.     He  also  alleged,  and  the  evidence  tended  to 

^ChreaMy  v.  Codling,  2  Bing.  263. 


474  IMPOSED  DUTIES,  PERSONAL.  [Part  11. 

prove,  that  lie  and  others  contemplated  placing  a  small  steamer  on 
the  lake,  but  were  deterred  from  engaging  in  the  enterprise  by  the 
existence  of  the  obstruction.  The  evidence  also  showed  that  he  did 
not  engage  in  the  business  until  four  or  five  years  after  the 
bridge  was  constructed.  The  substance  of  his  complaint  was 
that  the  bridge  obstructed  the  navigation  of  the  lake.  But  with 
reference  to  the  right  to  navigate  it,  it  was  ruled  that  he  occupied 
precisely  the  same  position  as  other  members  of  the  general  public; 
that  tlie  fact  that,  since  the  bridge  was  erected,  he  had  purchased 
boats,  and  engaged  in  the  business,  gave  him  no  other  or  different 
rights  with  reference  to  the  subject  than  were  enjoyed  by  others, 
for  everyone  had  the  right  to  do  the  same  thing.  His  sole  right 
in  the  premises  was  to  use  the  lake  as  a  highway;  but  it  M^as  said  that 
every  other  member  of  the  public  had  the  same  right,  and  an  in- 
dividual can  only  maintain  an  action  for  damages  by  reason  of  a 
nuisance  when  some  right  of  his  own  has  been  invaded.'  Relief  was 
therefore  denied  him  as  an  individual,  for  the  general  rule  is  that 
individuals  are  not  entitled  to  redress  against  a  public  nuisance. 

If  a  bridge  is  unlawfully  constructed  across  a  navigable  stream 
and  arm  of  the  sea,  the  direct  injury  is  to  the  navigation  of 
of  the  stream,  which  is  a  public  interest ;  and  the  fact  that  the 
plaintiff  alone  navigates  the  river,  and  is  the  owner  of  the  only 
wharf  thereon  above  the  bridge,  being  merely  proof  that  the  con- 
sequential damage  to  him  is  greater  in  degree  than  to  others,  does 
not  establish  his  right  to  maintain  an  action,  as  other  riparian  own- 
ers and  the  rest  of  the  public  may  suffer  in  the  same  way  when- 
ever they  use  the  stream.^  The  private  injury  is  merged  in  the 
common  nuisance  and  injury  to  all  citizens,  and  the  right  is  to  be 
vindicated  and  the  wrong  punished  by  a  public  prosecution,  and 
not  by  a  multiplicity  of  separate  actions  in  favor  of  private  per- 
fions.°     The  rule  undoubtedly  is  that  a  private  individual  will  not 

^Henry  v.  Newburyport,  149  Mass.  583,  5  L.  R.  A.  179. 

^Blackioell  v.  Old  Colony  R.  Go.  132  Mass.  1;  Lciwrencev.  FairJutven,  5  Gray, 
110;  Brightmanv.  Fairhaven,  7  Gray,  271;  Wesson  y.Washbm'n  Iron  Co. 
13  Allen,  95;  Brnyton  v.  Fall  River,  113  Mass.  218;  Borden  v.  Vincent,  24 
Pick.  301;  Smith  v.  Boston,  7  Cush.  257;  Thayer  v.  New  Bedford  R.  Co. 
125  Mass.  253;  Breed  v.  Lynn,  126  Mass.  367. 

^Wesson  v.  WasJiburn  Iron  Co.  13  Allen,  95,  101;  Stetson  v.  Faxson,  19  Pick. 
147;  Thayer  v.  Boston,  19  Pick.  511,  514;  Borden  v.  Vincent,  24  Pick.  801; 
Quincy  Canal  Co.  v.  Newcomb,  7  Met.  276,  283;  Holmanw.  T/mnsend,  13 
Met.  297,  299;  Brainard  v.  Connecticut  River  R.  Co.  7  Cush.  506,  511: 
Harvard  College  v.  Stearns,  15  Gray,  1;  Fall  River  Iron  Works  Co.  y.  Od 


■Chap.  XXI.]  RELIEF  FUOM  OBSTKUCTION  TO  FLOW  OF  STREAM.        4:75 

be  allowed  to  maintain  an  action  to  restrain  or  abate  a  pii1)lic  nui- 
sance unless  he  can  show  that  it  occasions  some  peculiar  or  special 
damage  or  injury  to  him.' 

One  who  suffers  no  pecuniary  damage  from  an  obstruction  in  a 
highway,  but  is  merely  put  to  the  inconvenience,  common  to  all 
who  use  the  way,  of  removing  the  obstruction  or  of  taking  a  more 
circuitous  route,  cannot  maintain  an  action."  But  if  a  public  nui- 
sance, such  as  an  unlawful  obstruction  to  a  common  passage,  causes 
peculiar  damage  to  an  individual,  he  may  maintain  an  action 
"therefor,  and  the  complaint  need  not  negative  the  lawfulness  of 
the  obstruction,  or  its  continuance,  or  that  it  was  unavoidable — 
these  being  matters  of  defense  to  be  set  up  by  answer.* 

Two  or  more  persons  owning  separate  and  distinct  tenements, 
whether  they  occupy  the  premises  by  themselves  or  by  tenants, 
may,  together  with  the  tenants,  where  the  tenements  are  lessened 
in  value  or  made  materially  uncomfortable  as  homes  by  a  nuisance 
which  is  a  common  injury  to  all  the  tenements  and  their  residents, 
join  in  a  suit  to  restrain  such  nuisance.*  Damages  may  be  re- 
covered for  a  peculiar  private  injury  caused  thereby,  though  a  like 
injury  is  sustained  by  numerous  other  persons.^    It  is  not  enough 

Colony  &  F.  R.  R.  Go.  5  Allen,  224;  Shaubut  v.  St.  Paul  &  8.  C.  R.  Co. 
21  Minn.  502;  OrigKby  v.  Clear  Lake  Waler  Works  Co.  40  Cal.  396;  Gor- 
•  don  V.  Baxter,  74  N.  C.  470;  Re  Eldred,  46  Wis.  530,  541;  Hatch  v.  Ver- 
mont Cent.  R.  Co.  28  Vt.  142;  Loio  v.  Knowlton,  26  Me.  128;  Lansing  v. 
Smith,  8  Cow.  146,  4  Wend.  9;  Landing  v.  Wisicall,  5  Denio,  213,  5  How. 
Pr.  77;  Fort  Plain  Bridge  Co.  v.  Smith,  30  N.  Y.  44;  Anderson  v.  Roch- 
ester, L.  &  N.  F.  R.  Co.  9  How.  Pr.  553;  Dougherty  v.  Bunting,  1  Sundf. 
1;  Oshorn  v.  Union  Ferry  Co.  53  Barb.  629;  State  v.  Thompsoii,  2  Strobh. 
L.  12;  Georgetown  St.  Comrs.  v.  Taylor,  2  Bay  (S.  C.)  282;  Harrison 
V.  Sterett,  4  Har.  &  McH.  540;  Flynn  v.  Cariton  Co.  40  Md.  312;  Walter 
V.  Wicomico  County,  35  Md.  385;  South  Carolina  R.  Co.  v.  Moore,  28  Ga. 
398;  Morgan  v.  Graham,  1  Woods,  124;  I^ewiston  Tnrnp.  Co.  v.  Shasta  & 
W.  Wagon  Road  Co.  41  Cal.  562;  Gould,  Waters,  222. 

n  High.  Inj.  §  762;  Gould,  Waters.  §§  121,  122;  Blackioell  v.  Old  Cohny 
R.  Co.  122  Mass.  1;  Willard  v.  Cambridge,  3  Allen,  574;  Prince  v.  McCoy, 
40  Iowa,  533;  Prosser  v.  Ottumica,  42  Iowa,  509. 

*Winterbott.om  v.  Derby,  L.  R.  2  E.^ch.  316;  Wiggins  v.  Boddington,  3  Car. 
&  P.  544;  Fineaux  v.  Hovenden,  Cro.  Eliz.  664;  Hubert  v.  Groves,  1  E*p. 
148:  Carpenter  v.  Mann,  17  Wis.  155;  Greene  v.  Nunnemacher,  36  Wis. 
50;  Houck  v.Wachter,  34  Md.  265;  Shipley  v.  Caples,  17  JId.  179;  Garitee 
V.  Baltimore,  53  Md.  422,  437;  Farrelly  v.  Cincinnati,  2  Disney  (Ohio)  516; 
McCovoan  v.  Whitesides,  31  Ind.  235;  Shed  v.  Hawthorne,  3  Neb.  179;  Barr 
V.  Steoens,  1  Bibb,  293.     See  Pittsburgh  v.  Scott,  1  Pa.  309. 

'Enos  V.  Hamilton,  27  Wis.  256;  Dudley  v.  Kennedy,  63  .Me.  465. 

*Snyder  v.  Cabell,  29  W.  Va.  48. 

*Francis  v.  ScJwelllcopf,  53  N.  Y.  152;  Soltau  v.  De  Held,  2  Sim.  N.  S.  133. 


476  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

that  injury  is  shown,  but  it  must  be  diSerent  in  kind  from  that 
sustained  bj  the  community  at  large.' 

An  allegation  that  plaintiff  had  great  difficulty  in  renting  his 
houses  by  reason  of  a  nuisance  maintained  by  defendant,  and  that 
they  had  depreciated  in  value,  is  sufficient  to  authorize  a  recovery 
for  loss  of  rents."  A  party  suffering  damage  from  the  improper 
construction  of  a  railroad  bridge  over  a  stream  of  water  crossing 
his  right  of  way  may  treat  it  as  temporary,  and  sue  for  injury  from 
its  continuance,  instead  of  for  the  whole  injury  to  the  value  of  hia 
property.' 

d.  Jurisdiction  of  Equity  over  Obstruction  of 
Flowing  Water. 

The  court  of  equity  has  jurisdiction  in  a  proper  case,  not  only 
to  determine  the  question  whether  a  nuisance  in  fact  exists,  but  tO' 
make  a  decree  that  it  be  abated.  But  in  such  a  case  it  must  clearly 
appear  that  the  complainant  has  title  to  the  watercourse,  or  the- 
land  under  it,  if  it  be  a  watercourse  that  is  complained  of,  and 
that  the  nuisance  is  made  out.*  A  bill  to  enjoin  the  obstruction 
of  a  stream,  alleging  that  defendant  placed  obstructions  in  it  a  cer- 
tain distance  above  complainant's  mill,  and  cut  off  his  right  and 
power  to  float  logs  from  his  lands  above  the  obstructions  down  tO' 
his  mill,  is  insufficient  in  not  averring  facts  showing  whether  its 
navigability  extends  above  the  obstruction."* 

To  divert  or  unreasonably  obstruct  a  watercourse  is  a  private- 
nuisance,  actionable  at  law.  The  jurisdiction  of  equity  to  intei- 
fere  in  such  cases  by  injunctive  relief,  to  prevent  irreparable  dam- 
age and  avoid  a  multiplicity  of  suits  at  law,  is  clear  and  well 

moicckv.WacJiter,  34  Md.  265;  ScJiall  v.  Nusbaum,  56  Md.  512;  Gilbert  v. 
Morris  Canal  &  Bkg.  Co.  8  N.  J.  Eq.  495. 

^Besso  V.  Southworth,  71  Tex.  765. 

^Chicago,  B.  &  Q.  R.  Go.  v.  Schaffer,  124  111.  113,  14  West.  Rep.  139;  Mc- 
Connell  v.  Kibbe,  29  111.  483. 

*Earl  V,  De  Hart,  12  N.  J.  Eq.  280,  287;  Van  Bergen^.  VanBergen,'iSo\\n8. 
Ch.  272,  1  N.  Y.  Ch.  L.  ed.  375;  Hammond  v.  Fuller,  1  Paige,  197, 
2  N.  Y.  Ch.  L.  ed.  614;  Mann  v.  WiUcinson,  2  Sumn.  276;  Farnum  v. 
Blackstone  Canal  Corp.  1  Sumn.  46;  Hill  v.  Sayles,  12  Gush.  454,  457;  Shel- 
don V.  Rockioell,  9  Wis.  166;  Ackerman  v.  Horicon  Iron  Mfg.  Co.  16  Wis. 
154;  Wilmarthy.  Woodcock,  58  Mich.  482,  66  Mich.  331,  9  West.  Rep. 895;. 
Ronayne  v.  Loranger,  66  Mich.  373,  10  West.  Rep.  520. 

^Morrison  v.  Coleman,  87  Ala.  655,  5  L.  R.  A.  384. 


Chap.   XXL]    RELIEF    FROM  OBSTRUCTION  TO  FLOW  OF    STREAM.       477 

established,  the  remedy  at  law  being  deemed  inadequate.'  In 
Massachusetts  the  right  to  proceed  in  equity  to  abate  public  nui- 
sances, in  the  exercise  of  tJie  police  power,  where  necessary  for  the 
protection  of  the  public,  has  been  fully  .recognized.'  Private 
persons  may  seek  the  aid  of  a  court  of  equity  to  restrain  or  abate 
a.  public  nuisance.  They  must,  however,  show  some  special  or  pe- 
culiar injury  to  themselves,  distinct  from  what  they  suffer  in  com- 
mon with  the  public,  in  order  to  succeed.' 

In  case  of  a  public  nuisance,  equitj'  will  interfere  at  the  instance 
of  a  private  individual  only  when  the  complainant  suffers  some 
private,  direct  and  material  damage  beyond  that  which  is  suffered 
by  the  public  at  large,  and  which,  without  such  interference,  will 
be  an  irreparable  injur}-  to  him.*  A  imisance  will  be  enjoined 
only  upon  clear  and  satisfactory  evidence  that  it  exists  and  that  it 
is  likely  to  cause  material  and  irreparable  injur}'.*  The  obstruc- 
tion must  be  plainly  a  nuisance  before  it  can  be  removed  by  de- 
cree.* But  that  which  is  declared  by  a  valid  statute  to  be  a 
nuisance  is  deemed  in  law  to  be  a  nuisance  in  fact,  and  should  be 
dealt  with  as  such.' 

Any  obstruction  in  navigable  waters  is  a  public  nuisance.' 
Whether  wharves  and  piers  constructed  by  riparian  proprietors 
on  the  shore  of  navigable  waters  are  a  nuisance  or  not  is  a  question 
of  fact ;  and  the  presumption  is  that  they  are  not,  and  he  who  al- 

^Burden  v.  Stein,  27  Ala.  104;    3  Pom.  Eq.  Jur.  §  13ol;  Gardner  v.  Kew- 

burgh,  2  Johns.  Ch.  162,  1  N.  Y.  Ch.  L.  ed.  332,  7  Am.  Der.  526;  Lawson 

V.  MenasJia  Wooden-Ware  Co.  59  Wis.  393;  Gould,  Waters,  §  215;  Ulbridit 

V.  Eufaula  Water  Co.  86  Ala.  587. 
^Carleton  v,  Rugg,  149  Mass.  550,  5  L.  R.  A.  193. 
^Henry  v.  Newburyport,  149  Mass.  582,  5  L.  R.  A.  179;    Bigeloxo  v.  Uartford 

Bridge  Co.  14  Conn.  565;  Frink  v.  Lawrence,  20   Conn.   117;  O'Brien  v. 

Norwich  &  W.  R.  Co.  17  Conn.  372;    Corning  v.   Lowerre,  6  .Johns.   Ch. 

439,  2  N.  Y.  Ch.  L.  ed.  178;  Doolittle  v.  Broome  Co.  18  N.  Y.  155;  Barnes 

V.  Racine,  4  Wis.  454;  Ronayne  v.  Loranger,  66  iSIich.  373,  10  West.  Rep. 

518. 
*Van,  Wagenen  v.  Cooney,  45  N.  J.  Eq.  24. 
'^Newark  Aqueduct  Board  v.  Passaic,  45  N.  J.  Eq.  393. 
^Mississippi  &  M.  R.  Co.  v.  Ward,  67  U.  S.  2  Black,  485, 17  L.  ed.  311 ;  Penn- 

sylvania  v.  Wheeling  &  B.  Bridge  Co.  54  U.  S.  13  How.  518,  14  L.  ed.  249. 
iCarleton  v.  Rugg,  149  Mass.  550,  5  L.  R.  A.  193. 
^Georgetown  v.   Alexandria  Canal  Co.  37  U.  S.  12  Pet.  91,  9  L.  ed.  1013; 

State  V.  South  Carolina  R.  Co.  28  S.  C.  23. 


478  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

leges  the  contrary  must  prove  it.'  But  tliat  which  the  law  author- 
izes cannot  be  a  public  nuisance." 

Raih'oads  and  permanent  piers  constructed  by  a  riparian  propri- 
etor on  the  shores  of  navigable  rivers,  bays  and  arms  of  the  sea, 
or  on  lakes  -where  they  do  not  extend  beyond  low-water  mark,  are 
not  a  nuisance  unless  they  are  an  obstruction  to  navigation.* 
Every  bridge  over  a  river  is  not  necessarily  a  nuisance." 

If  an  erection  by  whicli  navigation  is  affected  results  as  proposed 
in  its  inception  in  a  public  benefit,  and  is  in  an  appropriate  situ- 
ation, and  a  reasonable  space  is  left  for  the  passage  of  vessels,  it  is 
not  an  obstruction  to  be  abated.  The  obstruction  to  navigation 
must  be  specially  a  nuisance  before  it  can  be  removed  by   decree.* 

A  dam  unlawfully  erected  or  maintained  may  be  regarded  as 
both  a  public  and  private  nuisance.*  If  a  bridge  is  a  nuisance 
and  an  unlawful  obstruction  to  a  river,  every  continuance  of  said 
nuisance  is  a  new  nuisance;  and  recovery  may  be  had  for  each  in- 
jury as  it  occurs. ' 

^Dutton  V.  Strong,  66  U.  S.  1  Black,  23,  17  L.  ed.  29. 

'^Northern   Transp.  Co.  v.  Chicago,  99  U.  S.  635,  25  L.  ed.  336;  Pennsylvania 

V.  Wheeling  &  B.  Bridge  Co.  59  U.  S.  18  How.  421,  15  L.  ed.  435;  Miller 

V.  New  York  City,  109  U.  S.  3«5,  27  L.  ed.  971. 
^Button  V.  Strong,  66  U.  S.  1  Black,  23,  17  L.  ed.  29. 
*Milnor  v.    New  Jersey  R.  &  Transp.  Co.  70  U.  S.  3  Wall.  721,  16  L.  ed.  799; 

Mississippi  &  M.  R.  Co.  v.  Ward,  67  U.  8.  2  Black,  485,  17  L.  ed.  311. 
^Mississippi    &    M.  R.  Go.  v.  Ward,  67  U.   S.  2  Black,  485,  17  L.  ed.  311; 

Pennsylvania  v.  Wheeling  &  B.  Bridge  Co.  54  U.  S.  13  How.  518, 14  L.  ed' 

249. 
•Wood,  Nuisance,  pp.  16,   23,  354;    Barry.  Stevens,  1  Bibb,  293;  Wesson  v. 

Washburn  Iron  Co.  13  Allen,  95;  Bamford  v.  Turnley,  3  Best  &  S.  66; 

Wa^ffle  V.  New    York   Cent.  R.  Co.  58  Barb.  413;  People  v.   Townsend.  3 

Hill,  479;  Stoughton  v.  State,  5   Wis.  291;  Com.  v.  Webb,    6  Rand.    726; 

Douglass  v.  State,  4  Wis.  387;  Treat  v.  Bates,  27  Mich.  390. 
''Omaha  &  R.  V.  R.  Go.  v.  Standen,  23  Neb.  343. 


chaptet:  xxtl 

FERRIES -RIGHTS  AND  LIABILITIES  IN. 

Sec.  56.  Ferry  FrancMse. — Origin. 

Sec.  57.  Ferry  a  Public  Highway. —  \Mien  Exclusive. 

Sec.  58.  Assign7nent  of  Ferry  License. — Forfeiture. 

Sec.  59.  Ferryman  a  Common  Carrier. — Lialilily. 

Section  5C. — Ferry  Franchise.— Origin. 

In  a  fresh-water  stream,  not  influenced  by  the  tide,  the  right  of 
private  property  in  one  who  owns  both  banks  is  recognized  in 
many  of  the  States,  although  the  stream  be  in  fact  navigable  for 
boats.'    The  Legislature,  except  under  the  power  of  eminent  domain, 
and  upon  making  compensation,  can  interfere  with  such  streams 
only  for  the  purpose  of  regulating,  preserving  and  protecting  the 
public  easement.     Further  than  this  it  has  no  more  power  over 
these  fresh-water  streams  than  over  other  private  property.     It 
may  make  laws  for  regulating  booms,  ferries  and  bridges,  only  so 
far  as  it  is  necessary  to  protect  and  preserve  the  public  easement, 
and  if  it  go  beyond  this  it  invades  private  rights  which  are  guarded 
bv  constitutional   provisions.*     Any  person   owning  the  land  on 
both  sides  of  such  a  river  can  maintain  a  ferry  or  bridge  for  his 
OM'n  use,  provided  he  docs  it  so  as  not  to  interfere  with  the  public 
easement,*  without  regard  to  legislative  action.     But  a  toll  cannot 
be  charged  without  legislative  authority,  as  the  ferry  then  becomes 
part  of  a  public  highway  and  under  legislative  control.*     But 

^Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178;  ante,  p.  394,  notes  6,  7,  pp.  404, 
409. 

^Oanal  Comrs.  v.  People,  5  Wend.  428,  448;  Pennsylvania  v.  Wlifeling  &  /?. 
Bridge  Co.  59  U.  S.  18  How.  431,  15  L.  ed.  435;  Morgan  v.  King.  35  N. 
Y.  454. 

*Castellov.  Laridwehr,  28  Wis.  522;  Steamboat  Globe  v.  Kurtz,  4 Q.Greene,  433; 
Scott  V.  Chicago,  1  Bi.ss.  510;  The  Vancouver,  2  Sawy.  381. 

*CJienango  Bridge  Co.  v.  Paige,  83  N.  Y.  178;  Mills  v.  St.  Clair  Co.  49  U.  S. 
8  How.  581,  12  L.  ed.  1206;  Fitch  v.  Nero  Haven,  N.  L.  &  I.  li.  Co.  3() 
Conn.  39;  Oreer  v.  Haugabook,  47  Ga.  282;  Uaynes  v.  Wells,  26  Ark.  464; 
Henshaio  v.  Supervisors,  19  Cal.  150;  Conway  v.  Taylor,  66  U.  S.  1  Black, 
603,  17  L.  ed.  191;  McKobert<i  v.  Washburn,  10  Minn. ,23;  Iludnon  v.  Cuero 
L.  dc  E.  Co.  47  Tex.  58;  Trustees  v.  Talman,  13  111.  27. 


*4S0  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

where  such  right  to  collect  toll  is  conferred  by  statute  the  riparian 
proprietor  is  usually  given  the  option  to  establish  the  ferry.^  But 
this  is  not  essential  to  the  validity  of  the  franchise,  provided  com- 
pensation be  made  for  any  use  of  the  bank  to  the  owner,  without 
which  no  right  can  be  acquired  in  the  bank,'*  unless  the  highway 
include  the  bank  to  navigation/ 

Gray,  Ch.  J.,  in  Atty-Gen.  v.  Boston,  123  Mass.  460,  says  that 
the  definition  of  ferry  in  the  early  books  is :    "A  liberty  by  pre- 
scription or  the  King's  grant  to  have  a  boat  for  passage  upon  a 
great  stream  for  carriage  of  horses  and  men  for  reasonable  tolls." 
But  it  cannot  in  some  States  be  acquired  by  prescription.' 

A  ferry  franchise  is  property,'  but  it  is  subordinate  to  the  right 
of  navigation.'  It  partakes  so  far  of  the  nature  of  real  estate 
that  it  may  be  partitioned  in  connection  with  real  property  used 
in  the  business.'  The  right  of  a  ferry  is  a  thing  inherent  in  the 
sovereign.  It  does  not  emanate  from  the  soil."  The  recognition 
of  a  ferry  by  the  power  having  authority  to  establish  one  imports 
its  legal  existence  as  a  ferry.'" 

In  this  country,  in  the  States,  usually  the  obtaining  of  a  license 
to  keep  a  ferry  is  exclusively  a  statutory  proceeding  and  the  stat- 

^MulluY.  Gavins,  5  Blackf.  77;  Collins  v.  Ewing,  51  Ala.  102;  Haynes  v. 
Wells,  26  Ark.  464;  Beckley  v.  Learn,  3  Or.  544;  Willard  v.  Forsythe,  2 
Mich.  N,  P.  190;  Dunlap  v.  ToaJaim,  18  Tex.  582. 

^McCearly  v.  Swayze,  65  Miss.  351;  Collins  v.  Eioinq,  51  Ala.  102;  Hudson  v. 
Cuero  L.  &  E.  Co.  47  Tex.  58;  Bass  v.  Fontleroy,  11  Tex.  698;  Newton  v. 
Cubitt,  13  C.  B.  N.  S.  32;  New  York  v.  New  York  &  8.  I.  Ferry  Co.  8 
Jones  &  S.  232,  245;  Doty  v.  Graham,  5  Pick.  487;  Grant  v.  Drew,  1  Or. 
85;  Mills  v.  Learn,  2  Or.  215;  Averett  v.  Brady,  20  Ga.  523;  Peter  v.  Ken- 
dal, 6  Barn.  &  C.  703;  Prosser  v.  Wapello  Co.  18  Iowa,  327. 

^Fowler  v.  Mott.  19  Barb.  204;  Patrick  v.  Ruffner,  2  Rob.  (Va.)  209;  New  York 
V.  New  York  cfc  8.  I.  Ferry  Co.  8  Jones  &  S.  232,  240;  Church  v.  Meeker, 
34  Conn.  429;  Mills  v.  Learn,  2  Or.  215;  Walker  v .' Armstrong ,  2  Kan.  198; 
Somerville  v.  Wimbish,  7  Gratt.  205;  Neioton  v.  Cabitt,  12  C.  B.  N.  S.  32. 

*Bowman  v.  Wathen,  2  McLean,  376;  Bird  v.  8mith,  8  Watts,  434;  Leake  Co. 
Suprs.  V.  McFadden,  57  Miss.  618;  Letton  v.  Goodden,  L.  R.  1  Eq.  123; 
Laredo  v.  Martin,  52  Tex.  548;  3  Bl.  Com.  219;  Williams  v.  Turner,  7 
Ga.  348. 

^Sullivan  v.  Lafayette  Co.  Suprs.  58  Miss.  790;  Bird  v.  8mith,  8  Watts,  434. 

*McRobei'ts  v.  Washbui-ne,  10  Minn.  27;  Benson  v.  Neio  York,  10  Barb.  228. 

''Steamboat  Globe  v.  Kurtz,  4  G.  Greene,  433,  436;  Babcock  v.  Herbert,  3  Ala. 
392;  The  Vancouver,  2  Sawy.  381. 

^Rohn  V.  Harris,  130  111.  525. 

^Grant  v.  Drew,  1  Or.  38;  Peter  v.  Kendal,  6  Barn.  &  C.  703;  3  Kent,  Com. 
414,  458;  Washb.  Real  Prop.  264;  Beckley  v.  Learn,  3  Or.  470. 

^''Smith  V.  Harkins,  3  Ired.  Eq.  613,  44  Am.  Dec.  83. 


Chap.  XXII.]     FERRY  A  PUBLIC  HIGU WAY. WHEN  EXCLUSIVE.      4S1 

ute  must  be  strictly  pursued.'  A  grant  by  a  county  court  of  a 
license  to  keep  a  ferry  is  not  a  contract,  Ijut  a  privilege,  subject  to 
any  modification  the  county  court  may  see  lit  to  make." 

The  State  has  power  to  grant  a  license  to  operate  a  ferry  across 
a  stream  which  constitutes  its  boundaries.*  The  fact  that  the 
county  commissioners'  court  exceeded  its  powers  in  assuming  to 
grant  an  exclusive  ferry  privilege  will  not  prevent  the  grant  from 
being  operative  to  the  extent  of  the  power  possessed  by  such  court.* 
The  establishment  of  a  ferry  over  a  river  constituting  the  bound- 
ary between  a  State  and  a  foreign  country  is  not  an  interference 
with  foreign  commerce,  and  is  a  matter  within  the  discretion  of 
the  States  i-espectively,  and  not  of  Congress.*  The  operation  of 
an  unlicensed  ferry  is  unlawful,  and  a  licensee  is  entitled  to  pro- 
tection against  a  competition  carried  on  in  violation  of  law.'  But 
running  a  free  skiff  within  a  mile  of  a  licensed  ferry,  as  an  induce- 
ment to  persons  to  trade  at  the  store  of  the  owner,  docs  not  sub- 
ject such  owner  to  a  jDcnalty  for  running  a  ferry  for  hire,  where 
the  persons  carried  did  not  agree  to  buy  anything  at  the  store.' 

Section  ^"l.— Ferry  a  Pithlic  Highway.— Wlien  Ex- 
clusive. 

As  a  link  in  the  chain  of  transportation  on  dry  land  a  ferry 
forms  a  part  of  the  public  highway  or  a  connecting  link  between 
places  in  which  the  public  has  rights,  and  as  such  it  is  a  thing  of 
jmblic  interest  and  in  which  the  public  have  a  right  of  way  or  use 
on  paying  certain  specified  tolls,  regulated  and  prescribed  by  pub- 
lic authority ;  this  is  evident  from  the  nature  of  the  franchise  and 

^Minard  v.  Douglas  County,  9  Or.  206;  Rohiniton  v.  Mathirick,  5  Neb.  255; 

State  V.  Otoe  County  Comrx.  6  Neb.  132;   Doody  v.  Vaughn,  7  Neb.  28; 

Damp  V.  Dane,  29  Wis.  428. 
^Sullivan  V.  Lafayette  Co.  Su2)?'S.  58  ^Miss.  790;  Cliarles  River  Bridge  v.  TTrt?-- 

ren  Bridge,  36  U.  S.  11  Pet.  536,  9  L.  ed.  819. 
^Marshall  v.  Grimes,  41  Miss.  27;  Wiggins  Ferry  Co.  v.  En.'^t  St.  Louis,  102 

111.  560;  Jones  v.  Johnson,  2  Ala.  746;  TugtceU  v.  Eagle  Pass  Ferry  Co.  74 

Tex.  492. 
*TugiDell  V.  Eagle  Pass  Ferry  Co.  74  Tex.  492. 
''Gibbons  v.   Ogden,  22  U.  S.  9  Wheat.  1.  214.  6  L.  ed.  23,  74;    Tugircll  v. 

Eagle  Pass  Ferry  Co.  74  Tex.  492;  Elizabethport  dc  N.  T.  Ferry  Co.  v. 

United  States,  5  Blatcbf.  198. 
^Tugwell  v.  EagU  Pass  Ferry  Co.  74  Tex.  492. 
'/S7w>i?i  V.  Cottoti,  52  Ark.  90. 

31 


482  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

the  use  and  purposes  for  which  ferries  are  licensed  and  established, 
forming  part  of  a  public  passage  or  highway  wherever  rivers  or 
waters  are  to  be  passed  in  boats,  and  any  obstruction  of  the  use 
thereof  is  a  nuisance.' 

A  public  ferry  is  a  public  highway  of  a  special  description,  and 
its  termini  must  be  in  places  where  the  public  have  rights,  as  towns 
or  villages,  or  highways  leading  to  towns  or  villages."  The  limit 
is  high-water  mark.*  It  exists  in  respect  to  persons  using  the 
right  of  way  when  the  line  of  way  is  across  water ;  there  must  be 
a  line  of  way  on  laud  leading  to  a  landing  place  on  the  water's 
edge.* 

A  ferry  is  included  within  the  general  term  "  highway."  *  If  a 
ferry  is  not  in  gross  but  appurtenant  to  land  it  passes  in  a  convey- 
ance "  with  the  appurtenances."  '  But  under  a  statute  giving  an 
action  for  damages  arising  from  a  defect  in  a  "  highway,  causeway 
or  bridge,"  damages,  it  has  been  ruled,  cannot  be  recovered  for  in- 
juries resulting  from  defects  in  a  flat-boat,  used  by  the  county 
commissioners  as  a  ferry  connecting  highways  on  the  opposite 
sides  of  the  river.'' 

Where  a  stream  crosses  a  public  highway  the  continuity  of  the 
way  is  not  broken ;  it  does  not  end  on  one  side  of  the  stream  and 
begin  on  the  other,  but  continues  across  the  stream ;  and  the  pub- 
lic, for  the  purposes  of  travel,  have  the  same  right  to  go  on  the 
water  over  the  highway  that  they  have  to  pass  along  other  por- 
tions of  it ;  but  as  the  water  forms  a  physical  obstruction  to  indi- 
viduals, it  is  necessary  that  some  convenient  means  of  transporta- 
tion shall  be  furnished,  and  the  simplest  and  most  economical  in 
most  cases  is  by  a  ferry.* 

^HacTcett  v.  Wilson,  12  Or.  25;  Burlington  &  H.  Ferry  Co.  v.  Davis,  48  Iowa, 

133. 
^Lord  Abinger  in  Huzzey  v.  Field,  2  Cromp.  M.  &  R.  432,  442. 
^State  V.  Wilson,  42  Me.  9. 
'^Newton  v.  CuUtt,  12  C.  B.  N.  S.  82,  Willis,  J. 
'^Bidelman  v.  State,  110  N.  Y.  232,  13  Cent.  Rep.  403;  Dundy  v.  Chambers, 

23  111.  372;  Rex  v.  Nicholson,  12  East,  334. 
•i?e«7.  V.    Qreat  Northern  R.  Co.  14  Q.  B.  25;  Harthcock^.  Swift  Island  Mfg. 

Co.  72  N.  C.  410;  Biggs  v.  Farrell,  12  Ired.  L.  1. 
''Chick  V,  Newberry  &  Union  Counties,  27  S.  C.  419. 
^Sullivan  v.  Lafayette  Co.  Suprs.  58  Miss.  799;  Hudson  v.  Cu^ro  L.  &  E.  Co. 

47  Tex.  56;  Seal  v.  Donnelly,  60  Miss.  662;  Taylor  v.  Wilmington  &  M.  R. 

Go.  4  Jones,  L.  282,  285;  Hartford  Bridge  Co.  v.  Union  Ferry  Co.  29  Conn. 

239. 


Chap.  XXIL]     FERRY  A  PUBLIC  HIGHWAY. — WHEN  EXCLUSIVE.      483 

The  principle  to  be  deduced  from  the  authorities  upon  the  nat- 
ure of  the  franchise,  and  the  uses  and  purposes  for  whicli  a  ferry 
is  licensed  and  established,  is  that  the  ferry  can  only  exist  in  con- 
nection with  some  highway  or  place  where  the  public  have  rights. 
The  grant  of  a  ferry  franchise  for  the  transportation  of  persons 
and  property  across  a  stream  in  a  place  where  there  is  no  highway, 
or  in  which  the  public  have  no  rights,  would  be  void  and  inopera- 
tive. The  object  of  a  ferry  being  to  connect  places  or  highways 
in  which  the  public  have  rights,  when  intersected  by  streams,  it 
becomes,  when  licensed  and  established,  a  part  of  such  highway  or 
line  of  travel  between  such  places.  When,  therefore,  the  author- 
ity in  which  jurisdiction  is  vested  has  exercised  such  jurisdiction 
by  granting  a  license  to  supply  the  public  convenience,  and  the 
ferry  is  established,  connecting  such  highway  or  places,  thus  form- 
ing a  continuous  line  of  transportation,  it  has  exhausted  its  juris- 
diction as  to  such  places  or  highways,  while  such  franchise  exists 
as  a  link  or  part  of  the  highway  on  the  line  of  travel  between  such 
places  or  highways;  and  where  the  primary  object  to  be  accom- 
plished by  the  State  in  conferring  jurisdiction  is  to  secure  public 
accommodation  to  the  persons  licensed  to  keep  the  ferry,  and  the 
exclusive  privilege  of  transporting  all  persons  and  property  be- 
tween such  places  or  highways,  another  ferry  at  such  places  or 
highways  cannot  be  established  without  violating  the  exclusive 
privileges  secured  by  the  franchises  granted  to  the  ferry  already 
established  and  which  forms  a  part  of  such  highway  and  is  designed 
and  required  to  accommodate  all  persons  on  paying  the  required 
tolls  passing  along  the  line  of  travel  between  such  places  or  high- 
ways. The  reason  is  that  the  ferry  is  established  for  the  purpose 
of  taking  up  the  highway,  so  to  speak,  and  uniting  it  into  one  con- 
tinuous highway  or  line  of  travel  for  the  public  accommodation; 
and  as  a  protection  for  the  expense  and  delay  for  thus  serving  the 
public  convenience,  the  license  gives  the  exclusive  privilege  of 
carrying  all  persons  and  property  coming  on  the  line  of  such  high- 
way and  the  river  bank  for  transportation.'  A  second  ferry  can- 
not be  established  without  compensation  to  the  one  already  existing 
under  exclusive  privileges,  in  which  case  the  common-law  doctrine 

^Enfield  Toll  Bridrje  Co.  v.  Hariprd  &  N.  11.  R.  Co.  17  Conn.  40;   Mc Roberta 
V.  Washburne,  10  Minn.  23. 


4:S4  IMPOSED   DUTIES,    PERSONAL.  [Part   II. 

of  ferries  applies.'  But  where  the  charter  gives  no  exclusive  priv- 
ileges as  against  the  public,  such  privileges  cannot  be  implied,' 
and  where  the  exclusive  privileges  conferred  are  confined  to  the 
ferry  landings,  the  privileges  will  not  be  extended  on  each  side  so 
as  to  prevent  the  licensing  of  contiguous  and  rival  ferries,  where 
the  public  accommodation  requires  it.^  But  when  the  grant  is 
exclusive,  and  occupies  the  highway,  there  is  no  room  to  establish 
another  ferry,  for  the  ferry  already  established,  by  forming  a  part, 
continues  the  highway  over  the  water  and  occupies  that  place.  It 
may  be  said  that  the  highway  is  already  laid  out  over  the  water 
where  such  ferry  is  established  during  the  period  for  which  the 
franchise  is  granted,  and  till  it  expires  or  is  revoked  or  forfeited, 
it  would  not  be  within  the  jurisdiction,  under  the  power  to  grant 
a  license  to  keep  a  ferry  for  the  accommodation  of  the  public,  to 
establish  a  ferry  where  there  was  neither  highway  nor  public  place, 
and  therefore  such  a  ferry  could  not  be  established  just  outside 
or  beyond  the  line  of  the  highway,  where  a  public  ferry  already 
existed.* 

If  an  existing  ferry  furnish  insufficient  accommodations  to  the 
public  the  proper  authority  may  revoke  the  license,  but  cannot, 
unless  the  power  is  continued  for  future  use,  for  that  or  any  cause 
establish  another  ferry.^  An  order  granting  a  ferry  license  is  not 
void  because  it  fails  to  show  that  the  licensee  is  the  owner  of  one 
or  both  sides  of  the  river  on  which  the  ferry  is  located,  or  that  the 
prior  right  has  been  devested.*  IS'or  is  a  literal  compliance  with 
the  statute  as  to  posting  notices  upon  an  application  for  a  ferry 
necessary.''  After  a  license  to  keep  a  ferry  has  been  granted  to 
the  recognized  owner  and  occupant  of  the  adjacent  soil,  the  recov- 
ery of  possession  of  the  soil  by  the  real  owner  thereof  does  not 
operate  to  revoke  such  license.    But  it  continues  in  the  name  and 

^Enfield  Toll  Bridge  Uo.  v.  Hartford  &  N.  H.  B.  Co.  17  Conn.  40;  McRoherts 
V.  Washburne,  10  Minn.  23. 

^Charles  River  Bridge  v.  Warren  Bridge,  36  U.  S.  11  Pet.  506,  9  L.  ed.  819; 
Hopkins  v.  Great  K  B.  Co.  L.  R.  2  Q.  B.  Div.  224;  Wright  v.  Shorter,  56 
Ga.  72;  Mason  v.  Harper's  Ferry  Bridge  Co.  17  W.  Va.  396;  Chenango 
Bridge  Co.  v.  Lewis,  63  Barb.  Ill;  Washington  Toll  Bridge  Co.  v.  Beau- 
fort, 81  N.  C.  491. 

«  *Hackett  v.  Wilson,  12  Or.  25. 

^Lamar  v.  Marshall  County  Ct.  Comrs.  21  Ala.  772. 

^Collins  V.  Eicing,  51  Ala.  103. 

•'Drew  V.  Gant,  1  Or.  197. 


Chap.  XXIL]    ASSIGNMENT  OF  FERRY  LICENSE. — FORFEITURE.        4S5 

right  of  the  grantee  thereof,  and  not  of  the  real  owner  of  the  soil.* 
Parties  who  have  petitioned  the  proper  authorities  for  the  estab- 
lishment of  a  ferry  are  estopped  to  deny  the  legality  of  the  license 
granted.'' 

Section  58. — Assi^mnent  of  Ferry  License- 
Forfeiture. 

Upon  the  question  of  the  validity  of  the  assignment  of  a  ferry 
license  there  is  no  doubt  some  contrariety  of  opinion  among  the 
authorities.  In  Nott  v.  Fursh,  2  Or.  237,  it  was  held  that  a  ferry 
license  granted  to  another  than  a  riparian  owner  is  a  mere  personal 
trust  upon  conditions,  and  his  liability  cannot  be  removed  by  sub- 
stitution, but  such  license  terminates  upon  the  decease  of  the  per- 
son to  whom  it  was  granted.  This  decision  has  been  the  subject 
of  much  adverse  criticism.  As  authorities  to  sustain  this  view  it 
cites  Munro  v.  Thomas,  5  Cal.  470,  and  Thomas  v.  Armstrong,  7 
Cal.  286.  And  these  in  turn  have  been  approved  and  followed  in 
Wood  V.  Trucliee  Turnjpike  Co.,  24  Cal.  474,  and  People  v.  Dun- 
can, 41  Cal.  510. 

The  license  is  regarded  as  a  special  privilege  conferred  by  the 
government  upon  the  individual  which  does  not  belong  to  the  cit- 
izens generally  and  by  common  right.  The  grant  of  such  a  fran- 
chise or  special  privilege  to  the  individual  is  considered  one  of 
special  personal  trust  and  confidence,  which  cannot  be  assigned 
nor  be  the  subject  of  sale  under  execution."  And  again  it  has 
been  said  that  a  ferry  license  is  in  the  nature  of  an  appointment 
to  office  having  certain  fees  annexed,  to  be  held  at  the  pleasure  of 
the  appointing  power.*  On  the  other  hand  it  is  contended  that 
the  right  given  by  a  ferry  license  is  a  franchise  which  is  as  much 
property  as  any  other  incorporeal  hereditament ;  that  a  franchise 

^McCearly  v.  &wayze,  65  Miss.  351. 

^Burlington  v.  Gilbert,  31  Iowa,  356;  Burlington,  G.  R.  &  M.  R.  Co.  v.  5/^- 

art.  39  Iowa,  267;  Kellogg  v.  Ely,  15  Ohio  St.  66;  Ferguson  v.  Landram, 

5  Bush,  230. 


L   307;  Ammnnt  v.  Pittsburgh  Turnpike  Co.  13  Serg.  &  R.  210;  Lombard 
V.  Cheever,  8  111.  473;  Herm.  Ex.  §^  131,  361:  Ang.  &  A.  Corp.  §  191; 
Redf.  Railways,  419,  422;  Freeman,  Ex.  §  179. 
*Bay  V.  Stetson,  8  Greenl.  370. 


486  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

was  by  the  common  law  said  to  be  a  franchise  of  the  King's  pre- 
rogative in  the  hands  of  the  subject,"  but  that  in  America  it  was 
understood  to  be  a  particular  privilege  conferred  by  grant  from 
the  government  vested  in  individuals.''  Chancellor  Kent  says 
that  the  estate  in  such  a  franchise  and  an  estate  in  lands  rest  upon 
the  same  principle,  being  equal  grants  of  a  right  or  privilege  for 
an  adequate  consideration.' 

In  Conway  v.  Taylor,  QQ  U.  S.  1  Black,  232,  17  L.  ed.  191,  it 
is  said  :  "A  ferry  franchise  is  as  much  property  as  a  rent  or  any 
other  incorporeal  hereditament  or  chattel  or  realty ;  it  is  clothed 
with  the  same  sanctity  and  entitled  to  the  same  protection  as  other 
property."  In  Lippencott  v.  Alkmder,  27  Iowa,  460,  it  was  held 
that  a  ferry  license  was  not  vacated  nor  the  franchise  lost  by  tlie 
death  of  the  party  to  whom  it  was  granted,  but  passed  to  his  rep- 
resentatives." These  decisions  are  in  direct  conflict  with  Wott  v. 
F'ursTi,  supra,  and  disprove  the  reasoning  of  the  authorities  cited 
to  sustain  it.  It  should  be  observed,  however,  that  the  Iowa  Stat- 
ute makes  certain  provisions  for  the  sale  of  such  franchises  as  real 
property  on  an  execution,  which  were  referred  to  in  the  opinion 
as  strengthening  the  view  therein  expressed.  In  Mississippi  it  is 
assignable.^ 

In  Billings  v.  Breinig,  45  Mich.  70,  it  was  held  that  the  fran- 
chise of  keeping  a  ferry  is  property  having  a  value  incident  to 
other  kinds  of  proj)erty  and  transferable  from  the  original  grantee 
to  others,  subject  to  the  conditions  lawfully  imposed  and  to  such 
governmental  control  as  results  from  its  public  nature.*  It  thus 
appears  that  some  diversity  of  opinion  exists  in  the  authorities  as 
to  the  right  to  sell  or  assign  a  ferry  franchise  or  whether  the  same 
is  affected  by  death.  That  it  may  be  done  when  the  consent  of 
the  power  that  granted  it  has  been  obtained  does  not  seem  to  be 
questioned. 

If  it  be  true  that  the  franchise  is  a  personal  trust  and  not  assign- 
able, without  the  consent  of  the  granting  power,  then  the  right  to 

12B1.  Com.  37. 

«33  Kent,  Com.  458. 

*See  also  Leioisv.  Gainsville,  7  Ala.  85;   Greer  v,  EaugabooTc,  47  Ga.  282. 

^McCearly  y.  Swayze,  65  Miss.  351. 

^Bowman  v.  Wathen,  2  McLean,  376;  Felton  v.  Denll,  22  Vt.  170;  Benson  v. 

Neic  York,  10  Barb.  223;  Ladd  v.  Clwtard,  1  Minor,  306;  Willoughby  v. 

Horridge,  16  Eng.  L.''«fc  Eq.  437;  Dundy  v.  Chambers,  23  111.  370. 


Chap.  XXII.]    ASSIGNMENT  OF  FERRY  LICENSE. — FOREEITL'KE,         487 

object  to  the  transfer  of  the  franchise  and  its  exercise  by  the  party 
to  wliom  it  was  originally  granted,  is  a  right  affecting  the  public 
which  it  belongs  to  its  officers  to  take  advantage  of  by  the  proper 
proceedings,  and  it  cannot  be  collaterally  assailed.'  The  legality 
of  ferry  privileges  cannot  be  inquired  into  except  upon  a  direct 
proceeding  thereon,'  and  clearly  the  assignment  of  a  franchise 
cannot  be  questioned  either  collaterally  or  by  an  individual  whose 
rights  are  not  affected  by  it.'  It  may  be  lost  by  nonuser/  but  a 
ferry  franchise  will  not  be  forfeited  for  nonuser,  where  it  appears 
that  when  the  ferry  was  not  operated  the  owners  maintained  a 
sufficient  bridge  for  the  accommodation  of  the  public,  and  that 
after  the  destruction  of  the  bridge  they  had  again  maintained  and 
operated  the  ferry  for  five  years  before  the  commencement  of  the 
proceedings.' 

The  previously  acquired  ferry  right  of  a  nonresident  owner  is 
not  affected  by  Ky.  Gen.  Stat.,  chap.  42,  §  9,  subs.  3,  which  pro- 
vides for  the  revocation  of  the  grant  on  the  sale  of  the  right  to  a 
nonresident  unless  he  transfers  it  within  a  3'ear  to  a  resident.' 
Where  an  assignment  or  lease  of  a  ferry  can  be  made  legally,  the 
terms  are  of  course  matter  of  contract  between  the  parties,  subject 
to  interpretation  and  enforcement  in  the  courts.  Where  the  lease 
of  a  ferry  with  which  the  lessee  has  a  railroad  connecting  provides 
that  the  lessor  shall  have  a  per  cent  of  the  gross  receipts  of  the 
ferry,  and  the  only  provision  as  to  fare  over  the  ferry  is  that  it 
shall  not  be  less  than  5  cents,  if  the  lessee  maintains  the  fare  at  5 
oents  the  lessor  is  not  entitled  to  a  per  cent  on  the  whole  fare 
charged  for  passage  over  both  the  ferry  and  the  railroad,  but 
only  on  that  part  to  which  the  ferry  would  be  entitled  under  a 
fair  division.' 

^People  V.  Duncan,  41  Cal.  508;  Conner -v.  Paxson.  1  Blackf.  1G8;  Collins  v. 

Ewing,  51  Ala.  101;  Hackett  v.  Wilson,  12  Or.  25. 
^Conner  w.  Paxson,  1  Blackf.  168;  Churchill  v.  Orundy,  5  Dana,  99. 
^Crolley  V.  Minneapolis  &  St.  L.  R.  Co.  30  Minn.  541;  Patricks.  Ruffners,  2 

Rob.  (Va.)  209,  40  Am.  Dec.  745;  Elizabeth   City  Academy  v.  Lindsay,  6 

Ired.  L.  476.  45  Am.  Dec.  500:  Oakland  R.  (Jo.  v.  Oakland,  B.  &  b .  V.  R. 

Co.  45  Cal.  365;  Goine  v.  Allen,  4  Busb,  608;  Ihornpson  v.  Ae/r  York  &U.  R. 

Co.  3  Sandf.  Ch.  625,  7  N.Y.  Cb.  L.  ed.  ^d^;  Matthew  v.  Offley.  3  Sumn.  115. 
*Brearly  v.  Norris,  23  Ark.  514;  Jeffersonville  v.  27ie  John  Shallcrons,  35  lud. 

19;  Greer  v,  Haugabook,  47  Ga.  282. 
^Com.  V.  Hulings,  129  Pa.  317. 

*Dufour  V.  Stacey  (Ky.  June  19,  1890)  14  S.  W.  Rep.  48. 
''Staten  Island  Rapid  Transit  R.  Co.  v.  New  York,  119  X.  Y.  9G. 


488  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

Section  Z^.— Ferryman  a  Common  Carrier.— 
LiaMlity. 

A  ferryman  is  a  common  carrier,  and  his  "liability  begins  wlien 
the  traveler  is  directed  to  proceed.'  One  who  controls  a  ferry  is. 
charged  with  the  duties  of  a  common  carrier."  He  is  under  obli- 
gation in  reasonable  charges  to  accept  all  passengers  and  provide 
safe  and  suitable  accommodation  for  them,^  and  is  answerable  for 
negligence  for  any  injury  received,  through  failure  to  comply  with 
his  obligation."     He  must  furnish  a  safe  landing.' 

One  who  enters  upon  a  passenger  steamboat  in  good  faith  to 
take  passage  thereon  is  there  in  the  relation  and  character  of  a 
passenger,  and  the  owner  of  the  boat  owes  to  him  the  duty  of  a 
carrier  of  passengers,  although  no  fare  has  been  paid.'  "While 
a  ferry  company  is  bound  to  use  the  strictest  diligence  in  provid- 
ing suitable  and  safe  accommodation  for  the  landing  of  passengers 
from  its  boats,  it  is  not  bound  to  so  provide  against  any  possibility 
of  danger  that  they  may  meet  with  some  casualty.'  Still  a  car- 
rier is  not  relieved  from  liability  to  a  passenger  injured  by  a  ferry 
boat  striking  the  wharf  with  great  force,  though  the  oflBcers  in 
charge  of  the  boat  possessed  skill,  knowledge  and  experience,  and 


^Miles  V.  James,  1  McCord,  L.  157,  159. 

^Terkes\.  Sabin,  97  Ind.  142;  Dudley  v.  Camden  &  P.  Ferry  Co.  42  K  J. 
L.  25;  Burton  v.  West  Jersey  Ferry  Co.  114  U.  S.  474,  29  L.  ed.  215;  Slim- 
mer V.  Merry,  23  Iowa,  90;  Loftus  v.  Union  Ferry,  84  N.  Y.  455;  White  v. 
Winnisimmet  Co.  11  Cush.  155. 

'RicJiards  v.  Fuqua,  28  Miss.  792;  Wallen  v.  McHenry,  3  Humph.  245. 

*DelzeUv.  Indianapolis  &  G.  R.  Co.  32  Ind.  45;  Oakland  R.  Co.  v.  Fielding, 
48  Pa.  321;  Simmons  v.  New  Bedford,  V.  &  N.  Steamboat  Co.  97  Mass. 
361;  Kennedy  v.  Ryall,  67  N.  Y.  379. 

^Wyckoff  V.  Queens  Co.  Ferry  Co.  52  N.  Y.  32;  Dudley  v.  Camden  <&  P.  Ferry^ 
Co.  42  N.  J.  L.  25;  Le  Barron  v.  East  Boston  Ferry  Co.  11  Allen,  312; 
Blnkeley  v.  La  Due,  19  Minn.  187;  Richards  v.  Fuqua,  28  Miss.  792; 
Walker  v.  Jackson,  11  Mees.  &  W.  161:  Whitinore  v.  Bowman,  4  G.  Greene, 
148;  Wilson  v.  Hamilton,  4  Ohio  St.  722;  Powell  v.  Mills,  37  Miss.  691; 
Albright  v.  Penn,  14  Tex.  290;  Wilson  v.  Slmlkin,  6  Jones,  L.  375;  Wil- 
ovghby  v.  Horridge,  12  C.  B.  742,  749;  Hazman  v.  Hoboken  Land  Co. 
50  N.  Y.  53;  WJiite  w .Winnisimmet  Co.  7  Cush.  155;  Fisher  v.  Ciisbee,  12 
111.  344;  Clark  v.  Union  Ferry  Co.  35  N.  Y.  485. 

^Cleveland  v.  New  Jersey  Steamboat  Co.  68  N.  Y.  306. 

'^Loftus  V.  Union  Ferry  Co.  84  N.  Y.  455. 


Chap.  XXIL]      FERRYMAN  A  COMMON  CARRIER. LIABILITY.  4S9 

exercised  those  qualities,  unless  they  possessed  them  in  such  degree 
as  the  carrier  was  bound  to  provide ; '  and  the  fact  that  thousands 
of  persons  pass  over  a  ferry  without  injury  is  no  excuse  to  a  ferry 
company  for  not  making  adequate  provision  where  a  place  is  ob- 
viously dangerous.'  '  The  mere  failure  of  a  steam  ferry  company 
to  provide  a  seat  for  a  passenger  in  its  boat  is  nut  of  itself  proof 
of  negligence.* 

Where  a  ferry  company  is  accustomed  to  put  up  chains  and  to 
let  them  down  when  it  is  safe  for  passengers  to  leave  or  enter  tlio 
ferry  boat,  a  passenger  is  not  guilty  of  negligence  who  proceeds, 
relying  upon  the  absence  of  the  guard,  which  has  been  let  down 
too  soon  by  the  one  in  charge.*  But  a  passenger  on  a  ferry  boat, 
who  attempts  to  leave  by  the  gang-way  for  teams,  instead  of  that 
intended  for  passengers,  and  is  injured  by  the  guard-chain  being 
dropped  on  his  leg,  is  guilty  of  such  contributory  negligence  as  to 
preclude  a  recovery.*  Where  a  ferry  boat  strikes  the  wharf  with 
such  force  as  to  cause  the  boat  to  rebound  and  throw  a  man  2  or 
3  feet  from  the  head  of  a  stairway  down  the  stairs,  the  fact  that 
he  was  about  to  descend  when  the  boat  touched  is  not  of  itself  con- 
tributory negligence,  where  he  had  no  reason  to  think  that  the 
boat  would  touch  in  other  than  the  ordinary  way,  and  it  is  not 
shown  that  he  would  have  been  in  danger  had  it  toached  in  the 
ordinary  way.°  The  carrier  is  not  released  from  liability  because 
a  passenger  on  a  ferry  boat,  thrown  down  stairs  by  the  boat  com- 
ing in  contact  with  the  wharf  with  a  sudden  shock,  descended  the 
stairs  without  taking  hold  of  the  railing,  where  it  does  not  appear 
that  it  would  be  dangerous,  under  ordinary  circumstances,  not  to 
have  the  hand  on  the  railing  before  the  shock  that  might  be  an- 
ticipated should  occur.' 

A  ferryman  is  not  chargeable  as  a  common  carrier  for  the  abso- 

^Bartlett  v.  New  York  &  S.  B.  F.  &  S.  Tramp.  Co.  25  Jones  &  S.  848. 
•^Bartholomew  v.  Poughkeepsie  cD  H.  Ferry  Co.  (Sup.  Ct.  Dec.  9,  1889)  28  N. 

Y.  S.  R.  388. 
^Burton  v.  West  Jersey  Ferry  Co.  114  U.  S.  474,  29  L.  ed.  225. 
*Ferris  v.  Union  Ferry  Co.  36  N.  Y.  312.     See  Uaznan  v.  Hohoken  L.  <&  1. 

Co.  2  Daly,  130,  50  N.  Y.  53. 
^Graham  v.  Pennsylvania  R.  Co.  39  Fed.  Rep.  590. 
«  ■'Bartlett  v.  Mw  York  &  S.  B.  F.  &  8.  Transp.  Co.  25  Jones  &  S.  34a 


490  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

lute  safety  of  property  retained  by  a  passenger  in  his  own  custody, 
and  under  his  own  control.  One  who  drives  his  horses  upon  a 
ferry  boat  and  retains  the  control  and  custody  of  them  is  without 
remedy  for  their  loss  from  fright  at  the  bell  being  sounded,  where 
they  jumped  overboard,  because  he  failed  to  exercise  proper  care 
and  oversight  over  them.'  The  property  in  such  cases  is  not  at 
the  sole  risk  of  either  party.  The  ferryman  assumes  its  care  and 
safety  as  against  any  defects  in  his  boat,  or  the  want  of  proper 
means  and  their  proper  use  for  the  security  of  property  committed 
to  him,  as  well  as  for  the  reasonable  skill  and  care  of  himself  and 
his  servants.  In  accepting  the  transportation  of  horses  and  car- 
riage for  hire,  he  is  responsible  for  diligence,  care  and  skill  on  his 
and  their  part,  and  is  bound  to  provide  such  safeguards  as,  under 
all  ordinary  circumstances,  would  save  the  owner  from  loss.  If 
the  owner  retains  possession  of  his  property  and  assumes  the  care 
of  it  he  also  is  bound  to  exercise  ordinary  care  and  prudence  in 
the  management  of  it,  to  prevent  loss  or  injury,  for  the  doctrine 
of  contributory  negligence  is  applicable  to  this  class  of  cases.'  If 
his  failure  to  be  within  reach  of  his  horses  results  in  their  loss, 
when  he  has  assumed  their  control,  he  cannot  recover.'  Where 
the  carriage  is  gratuitous,  the  ferryman  is  only  answerable  for 
gross  negligence.* 

In  Grill  v.  General  Iron  Screw  Collier  Co.^  L.  R.  1  C.  P.  600, 
where  the  propriety  of  establishing  degrees  of  negligence  was 
questioned,  it  was  admitted  that  the  line  between  the  degrees  of 
care  cannot  be  disregarded.  The  absence  of  the  requisite  care  is 
the  presence  of  negligence.  Where  a  lesser  degree  of  care  is  due 
its  absence  shows  a  greater  degree  of  negligence.  It  is  unimport- 
ant, therefore,  whether  it  is  termed  gross  negligence  or  the  absence 
of  slight  care.     A  gratuitous  bailee,  who  accepts  goods  for  trans- 


'  WJiite  V.  Winnisimmet  Co.  7  Cush.  155. 

^  Clark  V.  Union  Ferry  Co.  35  N.  Y.  485;  Wyckoff^.  Queens  Co.  Ferry  Co.  53 

N.  Y.  32;  Dudley  yr.  Camden  &  P.  Ferry  Co.  43  N.  J.  L.  35;  Willoughby 

V.  Horridge,  12  C.  B.  743. 
^Dudley  v.  Camden  &  P.  Ferry  Co.  42  N.  J.  L.  25. 
*Dudley  v.  Camden  &  P.  Ferry  Co.  42  N.  J.  L.  25.     See  also  Fonier  v.  Essex 

Bank,  17  Mass.  479;  Edson  v.  Weston,  7  Cow.  278;  Beardslee  v.  Richardson, 

11  Wend.  25;  McCarthy  v.  Toung,  6  Hurl.  &  N.  339. 


Ohap,  XXII.]    FERRYMAN  A  COOION  CARRIKR. LIARILITY.  401 

portation  on  a  ferry,  is  liable  only  for  the  omission  of  that  fare 
which  the  most  inattentive  and  thoughtless  of  men  never  fail  to 
take  of  their  own  affairs.' 

Although  the  act  in  which  a  corporation  may  be  engaged  at  the 
time  it  is  guilty  of  a  tort  may  be  beyond  its  power  as  a  corpora- 
tion, this  fact  will  not  relieve  it  from  liability." 

^Dudley  v.  Camden  &  P.  Ferry  Co.  42  N.  J.  L.  25. 

^linsman.  v.  Beloidere  Delaware  R.  Co.  26  N.  J.  L.  148,  69  Am.  Dec.  565; 

Hew  York,  L.  E.  d-  W.  R.  Co.  v.  Unrinfj,  47  N.  J.  L.  137.  54  Am.  Rep. 

123;  Central  R.  &  Bkg.  Co.  v.  Smith,  76  Ala.  572,  25  Am.  liep.  3.J3;  Biif 

fett  V.  Troy  &  B.  R.  Co.  40  N.Y.  168;  Hutchinson  v.  Western  tfc  A.  R.  Co- 

6  Heisk.  634. 


CHAPTEE  XXIII. 

FISHERIES  AND  HUNTING  PRIVILEGES. 

Sec.  60.  Fislmig  Privileges  a  Property  Right  of  State  Citizenship^ 
Sec.  61.    Usage  as  Affecting  Fishery  Rights. 
Sec.  63.  Fishery  Rights  Commoti  to  All  or  Vested  in  Individuals. 
Sec.  63.   Private  Fisheries. 

Sec.  64.  Restrictio7is  upon  Fishing  and  Htmting  Rights. 
Sec.  65.   Game  and  Forestry  Laius. 

Sec.  66.  Distinction  letiveen  NavigaUe  Rivers  and  Mere   Logging- 
Streams  as  Affecting  Fishing  and  Hu7iting  Rights. 
Sec.  67.  Regulation  of  Fisheries  by  Statute. 
Sec.  68.  Destruction  of  Nets  Illegally  Used. 
Sec.  69.    Oyster  Fisheries. 

Sec.  70.  Injury  to  Fishery  hy  Negligent  Navigation. 
Sec.  71.  Protection  and  Propagation  of  Fish. 
Sec.  73.  Statutes  for  the  Preservation  of  Game. 

Section  60. — Fishing  Pidvileges  a  Property  Fdght  of^ 
State  Citizenship. 

Prior  to  the  Eevolution,  the  shore  and  lands  under  water  of  the 
navigable  streams  and  waters  of  the  North  American  Colonies 
belonged  to  the  King  of  Great  Britain,  as  a  part  of  the  jura 
regalia  of  the  Crown,  and  devolved  to  the  States  by  right  of 
conquest.  The  land  remains  subject  to  all  other  public  uses  as 
before,  especially  to  those  of  navigation  and  commerce,  which  are 
always  paramount  to  those  of  public  fisheries.'  And  the  purpose 
of  such  navigation  is  immaterial,  whether  for  commerce  or  pleasure.* 

If  land  on  the  coast  be  reclaimed  from  the  sea,  or  if  piers  or 
wharves  be  extended  into  the  sea,  such  land  and  structures  are  a. 
part  of  the  territorj''  of  the  State  whose  shores  they  adjoin." 

^Stockton  V.  Baltimore   &  N.  7.  B.  Co.  3a  Fed.  Rep.  9,  1  Inters.  Com.  Rep. 

411. 
^West  Roxbury  v.  Stoddard,  7  Allen,  158,  171;  Atty-Gen.  v.  Lonsdale,  L.  R. 

7  Eq.  377;  Atty-Gen.  v.  Woods,  108  Mass.  436;  The  Montello,  87  U.  S.  20' 

Wall.  430,  22  L.  ed.  391. 

^Pollard  V.  Hagan,  44  U.  S.  3  How.  213,  11  L.  ed.  565;  Weber  v.  State  Har- 
bor Comrs.  85  U.  S.  18  Wall.  57,  21  L.  ed.  798;  Barney  v.  Keokuk,  94  U. 
S.  324,  24  L.  ed.  224;  Com.  v.  Roxbury,  9  Gray,  451;  Com.  v.  Alger,  7 
Cusb.  53;  Boston  y.  Richardson,  105  Mass.  351;  Galveston  v.  Menard,  2S- 
Tex.  349. 


Chap.  XXIII.]    FISHING  PRIVILEGES  A  RIGHT  OF  CITIZENSHIl'.       493 

In  McCready  v.  Virginia,  94  U.  S.  391,  24  L.  ed.  248,  it  is  said 
in  the  opinion  that  "the  precise  question  to  be  determined  is 
whether  the  State  of  Virginia  can  prohibit  the  citizens  of  other 
States  from  planting  oysters  in  Ware  River,  a  stream  in  tliat  State, 
where  the  tide  ebbs  and  flows,  when  its  own  citizens  have  that 
privilege.  The  principle  has  long  been  settled  in  this  court  that 
€acli  State  owns  the  beds  of  all  tide-waters  within  its  jurisdiction, 
unless  they  have  been  granted  away."  *  "  In  like  manner  the  States 
own  the  tide-waters  themselves,  and  the  fish  in  them  so  far  as  they 
are  capable  of  ownership  while  running.  For  this  purpose  the 
State  represents  its  people,  and  the  ownership  is  that  of  the  people 
in  their  united  sovereignty.'"  "The  title  thus  held  is  subject  to 
the  paramount  right  of  navigation,  the  regulation  of  which,  in  re- 
spect to  foreign  and  interstate  commerce,  has  been  granted  to  the 
United  States.  There  has  been,  however,  no  such  grant  of  power 
over  the  fisheries.  These  remain  under  the  exclusive  control  of 
the  State,  which  has  consequently  the  right  in  its  discretion  to  a]>- 
propriate  its  tide-waters  and  their  beds  to  be  used  by  its  people  as 
a  common  for  taking  and  cultivating  fish,  so  far  as  it  may  be  done 
without  obstructing  navigation.  Such  an  appropriation  is  in  effect 
nothing  more  than  a  regulation  of  the  use  by  the  people  of  their 
-common  property.  The  right  which  the  people  of  the  State  thus 
acquire  comes,  not  from  their  citizenship  alone,  but  from  their 
oitizenship  and  property  combined.  It  is  in  fact  a  property  right, 
and  not  a  mere  privilege  or  immunity  of  citizenship." 

Whatever  rights,  if  any,  a  citizen  of  the  State  of  New  York 
might  have  obtained  under  the  common  law  b}'  long  possession 
and  user  of  an  oyster  bed  in  any  of  the  common  or  public  lands 
of  the  State,  no  such  rights  could  be  obtained  by  a  nonresident  of 
the  State,  or  retained  by  a  former  resident  after  he  had  removed 
from  the  State.'  Under  K  Y.  Fen.  Code,  §  441,  making  it  a 
misdemeanor  for  a  person  who  is  not  an  actual  inhabitant  and  resi- 
dent of  the  State  to  plant  oysters  without  the  consent  of  the  owner, 

^Citing  Pollard  v.  Hafjan,  44  U.  S.  3  How.  212,  11  L.  ed.  565:  Smith  v. 
Maryland,  59  U.  S.  18  How.  74,  15  L.  ed.  270;  Mumford  v.  Wardtrell,  73 
U.  S.  6  Wall.  423-436,  18  L.  ed.  756-760;  Weber  v.  State  Harbor  Comra 
85  U.  S.  18  Wall.  66,  21  L.  ed.  802. 

'Citing  Martin  v.  Wtddell,  41  U.  S.  16  Pet.  410.  10  L.  ed.  1013. 

^Huntington  v.  Lowndes,  40  Fed.  Rep.  G25. 


4:94  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

planting  by  a  nonresident  without  the  owner's  consent  constitutes- 
the  oli'ense ;  and  the  question  as  to  intent  to  violate  the  law  is  im- 
material.' 

Whatever  soil  below  low-water  mark  is  the  subject  of  exclusive 
property  and  ownership  belongs  to  the  State  on  wdiose  maritime 
border,  and  within  whose  territory,  it  lies,  subject  to  any  lawful 
grants  of  that  soil  by  the  State  or  the  sovereign  power  which  gov- 
erned its  territory  before  the  Declaration  of  Independence."  But 
this  soil  is  held  by  the  State  not  only  subject  to,  but  in  some  sense 
in  trust  for,  the  enjoyment  of  certain  public  rights,  among  which 
is  the  common  liberty  of  taking  fish,  as  well  shell-fish  as  floating- 
fish.' 

On  the  grant  from  Charles  II.,  Duke  of  York,  of  what  is  now 
]^ew  Jersey,  the  soil  under  the  navigable  waters,  with  the  right  of 
fishing,  both  for  shell-fish  and  floating  fish,  passed,  as  an  incident 
of  sovereignty,  in  trust  for  the  public."  Such  soil  and  rights  of 
fishing  passed  to  the  twenty -four  proprietors  from  the  Duke  of 
York,  and  from  them  back  to  the  Crown,  upon  their  surrender  in 
1702.  By  the  Kevolution  they  passed  from  the  Crown  to  the  State 
of  New  Jersey.'  Whatever  soil  below  high-water  mark  is  within 
the  exclusive  ownership  of  a  State  is  held  by  it  subject  to  and  in 
trust  for  the  enjoyment  of  the  public  rights  of  fishery,  and  is  un- 
der the  control  of  the  State  to  regulate  the  modes  of  that  enjoy- 
ment, so  as  to  prevent  acts  which  would  render  the  public  right 
less  valuable  or  destroy  it  altogether.'  The  right  of  fishing  in 
the  sea  or  rivers  either  for  swimming  fish  or  for  shell-fish  is  a  pub- 
lic right  which  belongs  to  all  the  inhabitants  of  the  locality,  unless 
restricted  by  law  or  local  regulation,  or  by  prescription.  A  grant 
to  a  town  of  a  title  in  the  bed  of  a  river,  or  in  flats  covered  by  tide- 
water within  its  limits,  does  not  convey  by  implication  the  right  of 
fishing  to  the  town  as  its  property,  for  the  right  of  fishing,  not  be- 
ing an  incident  to  the  right  of  pro^^erty  in  the  soil,  but  a  public 

^People  V.  Loiondes,  55  Hun,  469. 

^Pollard  V.  Harjan,  44  U.  S.  3  How.  312,  11  L.  ed.  565;  31artin  v.  Wadd^ll, 

41  U.  S.  16  Pet.  367,  10  L.  ed.  997;  Den  v.  Jersey  Co.  56  U.  S.  15  How. 

426,  14  L.  ed.  757. 
^Smith  V,  Maryland,  59  U.  S.  18  How.  74,  15  L.  ed.  270. 
*  ^Martin  v.  WaddeU,  41  U.  S.  16  Pet.  367,  10  L.  ed.  997;  RusseU  v.  Jersey,- 

Co.  56  U.  S.  15  How.  426,  14  L.  ed.  757. 
^Smith  V.  Maryland,  59  U.  S.  18  How.  71,  15  L.  ed.  269. 


Chap.  XXIII.]    FISHING  PRIVILEGES  A  EIGHT  OF  CITIZENSHIP.       495 

right  to  take  the  fish,  which,  whether  moving  in  the  water  or  iiii- 
hedded  in  tlie  mud  covered  by  it,  depend  upon  tlie  water  for  their 
nourishment  and  existence,  is  unaffected  by  the  question  whetlier 
the  title  to  the  land  is  in  the  State,  or  in  the  town,  or  in  private 
persons.'  In  exercising  this  right  the  public  may  rake  the  soil  or 
excavate  it."  The  right  and  duty  to  regulate,  control  and  protect 
the  fisheries  in  navigable  waters  along  the  shores  of  the  ocean  and 
of  the  Great  Lakes  has  alwaj's  been  within  the  province  of  the 
States  owning  the  adjacent  territory.'  One  owning  all  around  a 
lake  may  not  take  fish  contrary  to  statute  if  the  lake  connects  with 
public  waters."  For  the  pui-pose  of  regulating  fishing  therein,  a 
State  may  claim  jurisdiction  over  a  bay  within  its  borders,  the 
headlands  at  the  mouth  of  which  are  less  than  two  marine  leagues 
apart,  although  the  distance  between  the  opposite  shores  of  the 
bay  within  the  headlands  is  more  than  that ;  and  it  may  prevent  a 
citizen  of  another  State  from  taking  fish  in  such  bay,  although  he 
is  using  a  vessel  duly  enrolled  and  licensed  under  the  laws  of  the 
United  States  for  carrying  on  such  fishery,  at  least  in  the  absence 
of  any  law  of  Congress  relating  to  the  subject  and  of  all  discrimi- 
nation against  citizens  of  other  States.*  The  power  of  the  Legis- 
lature to  regulate  the  rights  of  fishing  and  other  public  rights  is 
very  broad.  Thus,  it  may  regulate  the  time  and  manner  of  fishing 
in  the  sea  within  its  limits,  and  may  grant  exclusive  rights  of  fish- 
ing." Instances  of  the  exercise  of  this  power  in  regard  to  the 
great  ponds  are  found  in  the  various  statutes  leasing  such  ponds  to- 
individuals,  which  have  been  held  to  be  valid,  although  they  grant 
exclusive  rights  to  individuals  and  exclude  others  from  the  exer- 
cise of  rights  to  the  use  of  the  ponds  to  which  they  were  before 

^Proctor  ^.  Wells,  103  Mass.  216;  Coolidge  v.  Williams,  4  Mass.  140;  Randolph 
V.  Braintree,  Id.  315;  Dill  v.  Wareham,  7  Iklet.  438;  Weston  v.  Sampson,  8 
Cush.  347;  Lakeman  v.  Burnham,  7  Gray,  437;  Com.  v.  Bailey,  13  Allen, 
541. 

^Moulton  V.  Libhey,  87  Me.  473;  Gulf  Pond  Oyster  Co.  v.  Baldwin,  43  Conn. 

355;  Paul  v.  Hazelton,  37  N.  J.  L.  106:  Porter  v.  Shehan,  7  Gray,  435; 

Fleet  V.  Hageman,  14  Wend.  43;  McGveady  v.  Virginia,  94  U.  S.  391,  24 

L.  ed.  248;  Gould,  Waters,  43. 
^Smith  V.  Maryland,  59  U.  S.  18  How.  71,  15  L.  ed.  269;  Smith  v.  Levinus, 

8  N.  Y.  473;  Laioton  v.  Steel,  119  N.  Y.  226,  7  L.  R.  A.  134. 
*State  V.  Roberts,  59  N.  H.  356,  47  Am.  Rep.  199. 
^Com.  V.  Manchester  (Mass.  Sept.  18,  1890)  9  L.  R.  A.  336. 
*McCready  v.  Virginia,  94  U.  S.  391,  34  L.  ed.  348;  Bennett  v.  Boggs,  Baldw. 

60;  Corjield  v.  Coryell,  4  Wash.  C.  C.  371. 


496  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

entitled.'  Each  State  owns  the  beds  of  tide-waters  within  its  ju- 
risdiction, subject  to  the  paramount  right  of  navigation.  Fisheries 
belong  to  the  State."  But  as  between  nations  the  minimum  limit 
of  the  territorial  jurisdiction  of  a  nation  over  tide-waters  is  a  ma- 
rine league  from  its  coast,  and  bays  wholly  within  its  territory  not 
exceeding  two  marine  leagues  in  width  at  the  mouth  are  within 
this  limit,  and  included  in  this  territorial  jurisdiction  is  the  right 
of  control  over  fisheries,  whether  the  fish  be  migratory,  free-swim- 
ming fish  or  fish  attached  to  or  imbedded  in  the  soil.*  The  open 
sea  within  this  limit  is  of  course  subject  to  the  common  right  of 
navigation,  and  all  governments  for  the  purpose  of  self-protection 
in  time  of  war  or  for  the  prevention  of  frauds  on  its  revenue  or 
the  destruction  of  fisheries  or  seals  exercise  an  authority  beyond 
this  limit.  No  doubt  a  government  will  claim  the  ownership  of 
the  soil  in  the  bays  and  in  the  open  sea  adjacent  to  its  coast  to  at 
least  this  extent  whenever  there  is  any  occasion  to  determine  the 
ownership.* 

Section  Ql.— Usage  as  Affecting  Fishery  Rights. 

The  usage  of  a  nation,  even  in  places  public  to  ^li  the  world,  in 
the  matter  of  fishing,  as  in  other  matters,  mfisv  control  others  ex- 
ercising the  right  of  fishing  in  such  locality.  Thus,  where  a  cus- 
tom had  obtained  universally  in  the  southern  whale  fishery  among 
the  Gallipagos  Islands,  that  whoever  struck  a  fish  with  the  drogue 
or  drag  should  receive  one  half  from  the  party  who  killed  it,  the 
usage  was  enforced,  although  about  fifteen  years  previously  several 
captains  of  ships  employed  among  the  Gallipagos  had  usually 
agreed  that  the  striker  of  a  fish  with  the  drogue  should  not  be  en- 
titled  to  a  share,  the  captain  of  the  ship  from  which  the  whale 

Worn.  V.  Vincent,  108  Mass.  441;  Com.  v.  Tiffany,  119  Mass.  300;  Cole  v.  East- 
ham,  133  Mass.  65. 

^McCready  v.  Vmjinia,  94  U.  S.  391,  24  L.  ed.  248. 

^Com.  V.  Manchester  ('SlvL'is.  Sept.  18,  1890)  9  L.  R.  A.  236;  Selden,  Mare 
Clausum,  lib.  2,  chap.  21;  16  Vin.  Abr.  576. 

■*The  authorities  are  collected  in  Gould  on  Waters,  part  1,  chap.  1,  §§  1-17, 
and  notes.  See  also  Neili  v.  Buke  of  Devonshire,  L.  R.  8  App.  Cas.  135; 
Oammell  v.  Woods  &  Forests  Comrs.  3  Macq.  H.  L.  Cas.  419;  Mowait  v. 
McFee,  5  Sup.  Ct.  (Can.)  66;  Beg.  v.  Cuhitt,  L.  R.  22  Q.  B.  Div.  623:  Stat. 
46  &  47  Vict.  chap.  22;  Com.  v.  Manchester  (Mass.  Sept.  18, 1890)  9  L.  R. 
A.  236. 


Chap.  XXIII.]       USAGE    AS    AFFECTING   FISHERY    RIGHTS.  4117 

was  struck  not  being  a  party  to  the  agreement.  It  1)ec;\ine  unnec- 
cessarj  to  decide  the  question  on  appeal,  but  while  Lord  Chief 
Justice  Mansiield  attached  some  importance  to  the  change  in  prac- 
tice, Chambre,  e/i,  held  the  custom  absolutely  good.  His  view  was 
this:  "  There  must  of  necessit}^  be  a  custom  in  these  things  to  gov- 
ern the  subjects  of  England,  as  well  among  themselves  as  in  the 
intercourse  with  the  subjects  of  other  countries.  The  usage  of 
Greenland  is  held  to  be  obligatory  not  only  as  between.  British 
subjects,  but  as  between  them  and  all  other  nations.  I  remember 
the  first  case  upon  that  usage,  which  was  tried  before  Lord  Mans- 
field, who  was  clear  that  every  person  was  bound  by  it,  and  said 
that  were  it  not  for  such  a  custom  there  must  be  a  sort  of  warfare 
perpetually  subsisting  between  the  adventurers,  and  he  held  it 
strongly  binding,  from  the  circumstance  of  it  extending  to  differ- 
ent nations.  The  same  necessity  must  prevail  in  the  south  seas, 
although  the  fishery  has  not  been  so  long  in  use,  in  order  to  regulate 
our  intercourse  with  the  French,  Americans  and  others  who  resort 
thither.  A  few  persons  may,  by  compact  among  themselves  for  a 
particular  reason,  renounce  any  advantages,  and  subject  themselves 
to  any  disadvantages,  that  they  please;  and  this  would  bind  all  those 
who  assented  to  it;  but  Luce  (who  claimed  the  share  in  the  fish) 
was  no  party  to  this  compact."  *  An  observance  of  this  rule  of 
respect  for  local  usage  during  certain  seasons  might  render  of  easy 
solution  the  right  of  taking  seals  in  the  waters  of  Behring  Sti-ait. 
In  the  Greenland  fishery  the  more  recent  claim  of  usage  is  that 
the  whale  continues  the  property  of  the  first  striker,  while  the 
harpoon  remains  in  him,  and  the  line  continues  attached  to  it. 
But  if  the  harpoon  is  torn  out  and  the  line  detached,  still  the  fish 
may  be  claimed  from  its  captor,  if  he  was  entangled  in  the  line, 
and  that  continued  in  the  control  of  the  striker."  A  trespasser 
who  intrudes  in  the  pursuit  while  the  fish  remains  fast  by  the  har- 
poon and  line  will  gain  nothing  by  detaching  the  fish  and  captur- 
ing it.'  A  toll  of  fish  may  sometimes  be  exacted  for  drawing  fish 
boats  upon  the  beach,  even  by  one  not  owning  the  cove.* 

^Fenninga  v.  Lord  Orenville,  1  Taunt.  243. 
^Hogarth  v.  Jackson,  Moody  &  M.  58,  2  Car.  &  P.  595. 
^Skinner  v.  Chapman,  Moody  &  M.  59,  n. 

*Faimouth  v.  Penrose,  9  Dowl.  &  Ry.  452;  Falmouth  v.  George,  5  Bing.  286. 
32 


498  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

Section  62. — Fishery  Rights  Common  to  All  or 
Vested  in  Individuals. 

Where  one  has  the  exclusive  right  of  fishing  and  is  presumably 
the  owner  of  the  soil,  though  not  necessarily  so,'  it  is  called  a  sev- 
eral fishery."  If  he  be  the  owner  of  the  soil,  his  right  is  more 
properly  called  that  of  territorial  fishing,  as  his  dominion  is  over 
the  territory  of  which  the  fishing  is  an  incident.'  The  presump- 
tion is  against  the  existence  of  a  several  fishery  in  tide-waters  and 
this  exclusive  right  must  be  sustained  by  evidence.*  Clearing  out 
a  fishing  place  in  a  river  does  not  give  an  exclusive  right  of  fishery.*' 

One  who  has,  as  is  said,  a  certain  property  in  the  fish,  and  ac- 
quires by  grant  or  prescription  an  exclusive  right  in  fishing  in  pul)- 
lic  navigable  waters,  holds  a  free  fishery.'  Woolrych  suggests 
that  a  free  fishery  is  no  other  than  an  unlimited  common  of  fish- 
ery.^ The  right  extends  to  all  waters,  whether  public  or  private.* 
A  common  of  fishery  and  a  common  fishery  are  distinguisliable  in 
that  the  first  is  a  right  in  common  with  certain  others,  in  a  partic- 
ular stream  on  another's  land,*  and  was  given  for  the  sustenance 
of  the  families  of  tenants  and  limited  thereby;'"  and  it  may  be  ap- 
pendant, appurtenant  or  in  gross  as  other  commonable  rights;'* 
and  the  latter,  a  common  fishery,  is  a  right  in  common  with  all 
others  in  a  common  water,  like  the  sea,"  Chancellor  Kent  says  r 
"  The   more  easy   and   intelligible   arrangement   of  the   subject 

^Holford  V.  Bailey,  18  L.  J.  N.  S.  (Q.  B.)  109. 

^Pollexfen  v.  Cmpin,  1  Vent.  133;  Holford  v.  Bailey,  13  Q.  B.  425,  444;  Mal- 

comson  v.  O'Dea,  10  H.  L.  (Jas.  593;  Caswell  v.  Johnson,  58  Me.  164;  Freary 

V.   Cooke,  14  Mass.   488;  Trustees  of  Brookhaven  v.  Strong,  60  N.  Y.  56; 

Munson  v.  Baldwin,  7  Conn.  168;  Skinner  v.  Rettrick,  73  N.  C.  53;  Gould, 

Waters,  183. 
3  Schultes,  Aq.  Rights,  87. 
*FitzwaUer's  Case,  1  Mod.  108;  Crichton  v.  Gallery,  Ir.  R.  4  C.  L.  508;  Rogers 

V.  Jones,  1  Wend.  237. 
^Westfall  V.  Van  Anker,  12  Johns.  425. 
'3  Kent,  Cora.  409;  Child  v.   OreenMll,   Cro.   Car.  553;  Smith   v.  Kemp,  2 

Salk.  637;  Alderman  v.  Hastings,  2  Sid.  8. 
■"Woolr.  Waters,  *136. 
8Co.  Litt.  123a,  note. 

^Gent  V.  Abbott,  8  Taunt.  187,  by  Dallas,  /. 
>»3  Bl.  Com.  35. 
"Woolr.  Waters,  *129. 
^"^ Smith  V.  Kemp,  2  Salk.  637;  Fitzwalter's  Case,  1  Mod.  105;  Benett  v.  Costar, 

8  Taunt.  183;  Gould,  Waters,  183. 


Chap.  XXIII.]  OWNERSHIP  OF  FISHERY    RIGHTS.  490 

would  seoin  to  be  to  divide  the  riglit  of  fisliing  into  a  right  com- 
mon to  all,  and  a  right  vested  exclusively  in  one  or  a  few  individ- 
uals." '  A  public  fishery  does  not  give  fishornien  a  right  to  draw 
nets  upon  the  sliore.'^  Prescription  connected  with  some  estate, 
not  a  custom  only,  must  be  shown  in  England  to  justify  fishing  in 
another's  waters,  in  a  navigal)le  stream,  not  tidal.'  Forty-five 
years'  use  of  particular  instrumentalities  in  catching  fish  is  not 
sufficient  to  establish  a  conclusive  legal  presumption  of  their  use 
from  time  immemorial.*  Ownership  of  a  strip  of  the  shore  of  a 
■pond  gives  no  right  to  fish  in  the  pond,  as  against  the  owner  of 
the  land  under  the  water.'  As  to  private  streams,  or  ponds  cre- 
ated therein,  no  right  exists  to  fish  in  them  without  license  of  the 
owner,  any  more  than  to  hunt  on  his  lands.*  An  action  for  use 
and  occupation  will  lie  for  a  fishing.'  A  right  of  fishing  may 
doubtless  be  acquired  by  the  public  by  prescription,  as  a  several 
fishery  may  be  derived.'  There  seems  no  good  reason  why  a  dedi- 
cation may  not  be  presumed  from  the  continued  exercise  by  the 
public  of  this  right,  as  in  case  of  other  easements,*  Indeed,  there 
are  but  two  methods  of  establishing  the  fishery — by  right  and  by 
dedication,  A  claim  founded  upon  an  abandonment  of  a  prescrip- 
tive right,  as  when  a  prescriptive  right  in  a  public  river  is  ne- 
glected, is  in  fact  a  resumption  of  the  public  rights.*'  Everyone, 
not  only  by  common  law  but  by  the  law  of  nations,  may  fish  with 
lawful  nets  in  the  sea,  for,  as  Grotius  states  it,  the  sea  is  as  free 
as  the  air."  Where  the  plaintiff  had  a  shoal  of  mackerel  in  a 
place  so  that  there  was  only  a  small  opening,  through  which  the 
witness  stated  they  could  not  escape,  this  was  held  not  such  pos- 

>  3  Kent,  Com.  411. 

2  WeslfuU  V.  Van  Anker,  13  Johns.  435. 

^Pearce  v.  Scotcher,  L.  R.  9  Q.  B.  Div.  163. 

*Holford  V.  George,  L.  R.  3  Q.  B.  639. 

^Baylor  v.  Decker,  133  Pa.  168. 

^BurrougJisv.Whitman,f)^M.\Q.\i.21%;  Greye's  Caxe,  Ow.  20.  Peo  21  Hen. 
VII.,  36;  10  H.  VII.,  6,  30;  Carter  v.  Murcof,  4  Burr.  21,  62;  Woolever  v. 
Steimrt,  36  Ohio  St.  146;  State  v.  Glen,  7  Jones,  L.  321;  BriaUA  v.  Ousa- 
tonic  Water  Co.  42  Conn.  403;  Boatwright  v.  Bookman,  Rice,  L.  447. 

''Eolford  V.  Pritchard,  3  Exch.  793. 

^ Gould  V.  James,  6  Cow.  369. 

"Woolr.  Waters,  *129. 

^'^Rogers  v.  Allen,  1  Camp.  313. 

"  Ward  V.  Greswell,  Willes,  255. 


500  IMPOSED   DUTIES,  PERSONAL.  [Part  11. 

session  as  prevented  the  defendant  from  taking  tliem,  no  special 
custom  of  the  particular  fishery  being  shown.'  Private  fishery  is 
by  grant,  prescription  or  custom,  and  sometimes  a  statute  regulates 
the  fishing  in  water  over  which  the  State  takes  control,  as  canals, 
etc.''  Fishing  rights  are  enjoyed  eitlier  in  public  or  private  stream's 
In  public  waters  the  right  is  by  grant  or  prescription.  A  grant  of 
exclusive  fishery,  except  as  to  what  are  called  royal  fish,  as  whales 
and  sturgeons,  in  an  arm  of  the  sea,  must  be  as  old  as  the  reign  of 
Elenry  the  Second.'  Every  sort  of  fishery  may  be  claimed  by 
grant,  prescription  or  custom,  but  a  claim  that  all  the  inhabitants 
of  a  locality  had,  as  such,  a  right  to  fish  in  a  particular  place  was 
held  to  be  founded  on  a  bad  custom.*  But  when  severed  from 
the  soil,  the  right  must  be  created  by  deed.  As,  where  a  clahn  to 
fish  in  the  River  Dart  was  founded  on  a  simple  writing,  it  was 
held  that,  as  it  purported  to  grant  the  fishery  only,  and  was  not 
under  seal,  it  could  not  operate  as  a  demise  for  years  of  that  which 
lies  in  grant."  But  one  could  justify  as  an  agent  of  the  owner 
under  a  parol  license.  When  the  lessor  has  a  sole  fishery,  a  grant 
of  the  water,  reserving  the  fishei'y,  is  good  as  a  reservation.*  So 
a  grant  of  a  common  of  fishery  is  good,  although  there  be  a  reser- 
vation of  a  portion  of  the  water  to  a  special  use.'  The  ouster  of 
a  corporation,  without  its  dissolution,  after  its  restoration  to  its 
fishery  rights  by  reincorporation,  will  not  be  held  as  having  passed 
the  ancient  fishery  to  the  Crown,  nor  will  a  written  grant  by  it  to 
certain  dredgermen,  to  dredge  for  oysters  during  the  season,  oper- 
ate as  a  demise  so  as  to  take  away  the  possession  from  the  corpo- 
ration.* Where  the  plaintiff  and  defendant  were  separately  pos- 
sessed of  four  and  a  half  acres  of  land,  which  under  an  Act  of 
Parliament  was  converted  into  a  reservoir,  there  being  a  regulation 
in  favor  of  the  plaintiff  and  defendant  as  to  taking  the  fish  in  the 

1  Young  v.  Eichins,  6  Q.  B.  606. 
« Woolr.  Waters,  *130. 

*Co.  Litt.  114;  Warren  v.  Mathews,  6  Mod.  73;  Eogersv.  Allen,  1  Camp.  313, 

note  a;  3  BI.  Com.  39. 
*Lloi/d  V.  Jones,  6  0.  B.  81. 
'^Somerset  v.  Fogwell,  5  Bara.  &  C.  875,  1  Djwl.  &  Ry.  347.    See  Bird  v.  Hig- 

ginson,  6  Ad.  &  El.  824. 
^Paget  v.  Milles,  3  Doug.  43. 
■I  34  Ass.  pi.  11. 
^Colchester  v.  Brooke,  7  Q.  B.  339. 


Chap.   XXIII.]  PRIVATE    FISHERIES.  501 

reservoir  that  the  owners  of  the  land  on  wliicli  it  stood  might 
let  the  water  out  once  in  seven  years  for  the  purpose  of  taking 
the  tish,  the  time  being  limited  to  the  month  of  Xoveniber,  it 
was  contended  that  the  owners  were  tenants  in  common  of  the 
septennial  fishery  thns  created,  but  the  interest  was  held  to  be  also 
several,  and  each  party  was  therefore  entitled  to  have  the  fish  left 
on  his  own  land  when  the  reservoir  was  drained.  It  was  urged 
that  the  fish  would  go  along  with  the  water  as  it  ebbed  and  be 
finally  stranded  on  the  land  lowest  down  the  outlet,  and  thus  no 
reasonable  division  could  be  made,  unless  there  was  a  tenancy  in 
common.  But  the  ruling  was,  that  it  was  a  general  right  of  fish- 
ery, and  each  party  must  take  his  chance  of  the  fish  left  aground.' 

Section  (S2>.— Private  Fisheries. 

In  this  country,  while  the  ebb  and  flow  of  the  tide  do  not  deter- 
mine the  navigability  of  the  stream,  they  have  been  held  to  deter- 
mine the  right  of  fishing  therein,and  therefore,  although  a  stream  be 
navigable  for  boats,  yet  if  it  be  not  subject  to  tide-water,  it  is  held 
private  so  far  as  fishing  rights  are  involved,  the  ownership  of 
the  land  under  the  water  giving,  where  it  exists,  exclusive  rights 
to  the  fishing.''  It  is  said  by  Sir  Matthew  Hale  in  De  Jure  Maris: 
'•Fresh  rivers  of  what  kind  soever  do,  of  common  right,  belong  to 
the  owners  of  the  soil  adjacent,  so  that4he  owners  of  the  one  side 
have,  of  common  right,  the  property  of  the  soil,  and  consequently 
the  right  of  fishing,  usque  filunb  aquce;  and  the  owners  of  the  other 
side,  the  right  of  soil  or  ownersliip  and  fishing  unto  the  filum 
aqucB  on  their  side.  And  if  a  man  be  the  owner  of  the  land  of 
both  sides,  in  common  presumption,  he  is  the  owner  of  the  whole 
river,  and  hath  the  right  of  fishing  according  to  the  extent  of  his 
land  in  length.  With  this  agrees  the  common  experience." '  "But 
^Snape  v.  Dobbs,  1  Bing.  202,  8  Moore.  23. 

^Hooker  v.  Cummim,  20  Johns.  90,  100;  People  v.  Plait,  17  Johns.  195; 
Palmer  v.  Mulligan,  3  Caines,  307,  315;  Adams  v.  Pease,  2  Conn  481 ' 
483,  484;  People  v.  Piatt,  17  Johns.  195,  209,  210:  Brown  v.  Kennedy,  5 
Har.  &  J.  195;  Trustees  of  Brookluiven -v.  Strong,  60  N.Y.  56;  Beckma'n'v 
Kreamer,  43  111.  447;  Inland  Fisheries  Comrs.  v.  Holvoke  W.  P  Oo  104 
Mass.  446. 

•See  Hooker  v.  Cummins,  20  Johns.  90,  99-101 ;  Arnold  v.  Mnnday,  6  N.  J  L 
174;  Freary  v.  Cooke,  14  i\Iass.  488;  Ingram  v.  Treadgill,  3  Dev.  L.  59- 
Com.  V.  Chapin,  5  Pick.  199;  Lewis  v.  Keeling,  1  Joiies,  L.  299;  Com  v' 
Vincent,  108  Mass.  441;  Cobb  v.  Davenport,  32  N.  J.  L.  399;  Claremont  v 
Carlton.  2  N.  H.  369,  371;  Hayes  v.  Boicman,  1  Rand.  417,  420 


502  IMPOSED    DUTIES,  PERSONAL.  [Part     II. 

special  usage  may  alter  that  common  presumption;  for  one  man 
may  have  the  river,  and  others  the  soil  adjacent;  or  one  man  may 
have  the  river,  and  another  the  free  or  several  fishing  in  that  river. 
Though  fresh  rivers  are  in  point  of  property,  as  before, 
prima  facie  of  a  private  interest;  yet  as  well  fresh  rivers  as  salt, 
or  such  as  flow  and  reflow,  may  be  under  these  two  servitudes,  or 
affected  by  them,  viz.:  one  of  prerogative,  belonging  to  the  King, 
and  anotlier  of  public  interest,  or  belonging  to  the  people  in  gen- 
eral." The  prerogative  rights  of  the  King  are  recognized  "in 
many  fresh  rivers,  even  where  the  sea  dotli  not  flow  or  reflow,  as 
well  as  in  salt  or  arms  of  the  sea."  These  rights  are:  (1)  That  no 
man  may  set  up  a  common  ferry  for  all  passengers,  without  a  pre- 
scription time  out  of  mind  or  a  charter  from  the  King.  (2)  An 
interest  of  pleasure  or  recreation,  not  applicable  in  this  country 
and  obsolete  in  England,  as  Hale  says.  (3)  An  interest  of  juris- 
diction in  regard  to  common  nuisances  in  or  by  rivers,  as  well  for 
fresh  rivers  as  for  salt.  This  jurisdiction  is  confined  to  such 
streams  as  are  a  common  passage,  not  only  for  ships  and  greater 
vessels,  but  also  for  smaller,  as  barges  or  boats,  "  to  reform  the 
obstructions  or  aimoyances  that  are  therein  to  such  common  pas- 
sage." So  it  is  said,  "  there  be  some  streams  or  rivers  that  are 
private,  not  only  in  property  or  ownership,  but  also  in  use,  as  little 
streams  and  rivers  that  are  not  a  common  passage  for  the  King's 
people.  Again,  there  be  other  rivers,  as  well  fresh  as  salt,  that 
are  of  common  or  public  use,  for  carriage  of  l)oats  and  lighters. 
And  these,  whether  they  are  fi-esh,  whether  they  flow  and  reflow 
or  not,  are  prima  facie  imbliGi  juris^  common  highways  for  man 
or  goods,  or  both,  from  one  inland  town  to  another."  * 

In  Hooker  v.  Cummings,  20  Johns.  100,  Spencer,  Ch.  -/.,  reaches 
the  conclusion  that  "  the  common  law  of  England  considers  a  river, 
in  which  the  tide  ebbs  and  flows,  an  arm  of  the  sea,  and  as  navi- 
gable, and  devoted  to  the  public  use,  for  all  purposes,  as  well  for 
navigation  as  for  fishing.  It  also  considers  other  rivers,  in  which 
the  tide  does  not  ebb  and  flow,  as  navigable,  but  not  so  far  belong- 
ing to  the  public  as  to  devest  the  owners  of  the  adjacent  banks  of 
their  exclusive  rights  to  the  fisheries  therein."  But  in  a  later 
case  it  is  said  "that  if  the  term  'navigable  water'  as  used  in 

^  See  Baldwin  v.  Ooodyear,  6  Cow.  536,  note  a,  537-539. 


Chap.  XXIII.]       RESTRICTIONS    UPON    FISHING  AND  HUNTING.  503 

England  was  ever  there  for  any  purpose  wholly  restricted  to  the 
waters  which  are  affected  by  tlie  ebb  and  flow  of  the  tide,  it  has 
by  common  consent  a  more  enlarged  signification  in  this  country, 
and  is  here  held  to  mean  all  such  waters  as  are  actuall}'  navigable, 
whether  fresh  or  salt.  TTlien  it  is  considered  that  the  riglits  and 
interests  of  the  public,  such  as  fishing,  ferrying  and  transportation, 
are  preserved  in  all  navigable  waters  by  the  inherent  and  inalien- 
able attributes  of  the  sovereign,  it  would  seem  to  follow  that  the 
controversies  which  have  arisen  over  the  nominal  ownership  of  the 
soil  under  such  waters  have  been  magnified  beyond  the  real  inter- 
ests involved.'"  It  issaid  that  fishing  in  open  waters  remote  from 
tlie  land  is  a  maritime  business  like  navigation,  and  may  be  carried 
on  by  any  suitable  machinery,  and  even  with  stakes  wherever  it 
•does  not  interfere  with  navigation  and  is  not  forbidden  by  law. 
And  in  narrow  streams  fishing  from  boats  with  lines  cannot  ])e 
complained  of  by  riparian  owners,  if  the  persons  fishing  have  the 
right  to  be  there.  Fish  are,/*ercB  naturae,  and  can  be  taken  by  any- 
one who  has  the  right  to  be  on  the  premises." 

^Section  64. — Restriotions  upon  Fishing  and  Hunt- 
ing Pdghts. 

"While  the  questions  of  fishing  and  hunting  are,  in  principle, 
somewhat  analogous,  yet  they  have  always  in  England  been  treated 
as  separate  subjects  of  legislation  and  regulation.  The  Forest  and 
Game  Laws  of  England  have  always  been  treated  under  a  separate 
code,  distinguished  for  its  inhibition  of  the  common  rights  of  the 
subject,  and  for  the  cruel  punishments  inflicted  for  trivial  offenses.' 
The  common  law,  which  recognized  the  right  of  hunting  and 
of  property  in  wild  animals  to  be  a  royal  prerogative,  and  to 
vest  in  the  King,  has  no  existence  in  this  country.  Here  the  sov- 
ereign power  is  in  the  people,  and  the  principle,  founded  upon 
reason  and  justice,  obtains  that,  by  the  law  of  nature,  every  man, 
of  whatever  rank  or  station,  has  an  equal  right  of  taking  for  his 
own  use  all  creatures  fit  for  food  that  are  wild  by  nature,  so  lono- 
as  he  does  no  injury  to  another's  rights.     Laws  liave  been  passed 

^Sniith  V.  Rochester,  92  N.  Y.  463,  479,  480. 

^Lincoln  v.  Davis,  53  Mich.  375. 

^3  Bl.  Com.  411  etseq.;  Com.  Dig.  Justices  of  the  Peace,  43,  45-49. 


504  IMPOSED    DUTIES,  PERSONAL.  [Part  II. 

to  protect  game  during  certain  seasons,  with  a  view  to  their  pres- 
ervation, but  none  denying  the  right  of  any  person  to  capture  or 
kill  game  in  the  allotted  season. 

This  j'ight  is  restricted  only  as  to  place.  Since  every  person  has 
the  riofht  of  exclusive  dominion  as  to  the  lawful  use  of  the  soil 
owned  by  him,  no  man  can  hunt  or  sport  upon  another's  land,  but 
by  consent  of  the  owner.  The  owner  of  lands  has  the  exclusive 
right  of  hunting  and  sporting  upon  his  own  soil.  "Whatever  may 
be  the  view  entertained  when  the  land  belongs  to  the  United  States 
or  to  the  State,  there  can  be  no  question  when  the  land  passes  to 
the  hands  of  private  owners. 

The  defendant  in  Sterling  v.  Jackson,  69  Mich.  488,  14  West. 
Rep  229,  claimed  that  he  had  the  right  to  shoot  wildfowl  from 
his  boat,  because,  as  the  waters  were  navigable  where  he  was,  he 
had  a  right  to  be  there;  that  there  being  no  property  in  wildfowl 
until  captured,  if  he  committed  no  trespass  in  being  where  he 
was,  no  action  would  lie  against  him  for  being  there  and  shooting 
the  wild  duck. 

It  was  admitted  by  the  court  that  there  was  a  plausibility  in  the 
position,  which,  considered  in  the  abstract,  was  quite  forcible,  and, 
if  applied  to  waters  where  there  was  no  private  ownership  of  the 
soil  thereunder,  would  be  unanswerable.  But,  it  was  said,  so  far 
as  the  plaintiff  was  concerned,  defendant  had  no  right  to  be  where 
he  was  except  for  the  purpose  of  pursuing  the  implied  license  held 
out  to  the  public  of  navigating  the  waters  over  his  land.  So  long 
as  that  license  continued,  he  could  navigate  the  water  with  his  ves- 
sel, and  do  all  things  incident  to  such  navigation.  He  could  seek 
the  shelter  of  the  bay  in  a  storm  and  cast  his  anchor  therein.  But 
it  was  there  decided  that  he  had  no  right  to  construct  a  "hide,"  or 
to  anchor  his  decoys  for  the  purpose  of  attracting  ducks  within 
reach  of  his  shotgun.  Such  acts,  it  was  said,  are  not  incident  to 
navigation,  and  in  doing  them  defendant  was  not  exercising  the 
implied  license  to  navigate  the  waters  of  the  bay,  but  they  were 
an  abuse  of  such  license.  The  same  claim  that' the  defendant  was 
where  he  had  a  right  to  be  when  he  did  the  shooting  was  made  in 
the  case  of  Carrington  v.  Taylor,  11  East,  571.  That  was  an  ac- 
tion on  the  case.  The  plaintiff  was  possessed  of  a  certain  place 
prepared  with  suitable  and  proper  conveniences  for  decoying  and. 


Chap.  XXIII.]       RESTRICTIONS    UPON    FISHING  AND  HUNTING.         505 

catching  wildfowl,  commonly  called  a  decoy,  and  had  been  accus- 
tomed to  catch  wild  ducks,  etc.,  in  his  decoy,  which  was  situated 
on  one  of  the  salt  creeks  called  the  Bhickwater  River,  where  the 
tide  ebbed  and  flowed.  The  defendant  sought  his  livelihood  in 
part  by  shooting  wildfowl  from  his  boat  on  the  water,  for  which 
boat,  with  small  arms,  he  had  a  license.  The  only  proof  of  the 
disturbance  by  the  defendant  was  that  he,  being  out  in  his  boat 
shooting  wildfowl  in  a  part  of  the  open  creek,  first  tired  his  fowl- 
ing-piece within  about  a  quarter  of  a  mile  of  the  plaintiff's  decoy, 
when  '200  or  300  wildfowl  came  out;  and  afterwards  approached 
nearer,  and  fired  again  at  a  wildfowl  upon  the  wing  at  the  dis- 
tance of  about  200  yards  and  upwards  from  the  decoy  pond,  when 
he  killed  several  widgeons,  and,  immediately  upon  the  noise  of  the 
gun,  400  or  500  wildfowl  took  flight  from  the  pond;  but  it  did 
not  appear  that  he  fired  into  the  decoy.  The  learned  judge  left 
this  as  evidence  to  the  jury  of  a  willful  disturl)ance  of  the  plain- 
tiff's decoy,  by  the  defendant,  for  which  this  action  would  lie. 
The  jury  found  a  verdict  for  plaintiff.  On  a  motion  to  set  this 
verdict  aside  as  being  against  law  and  evidence,  counsel  for  defend- 
ant claimed  that  the  defendant,  having  a  right  to  shoot  at  the  wild- 
fowl in  the  place  where  he  was,  which  was  an  (jpen  creek  or  arm 
of  the  sea  where  the  tide  flowed  and  reflowed,  and  not  having  sone 
upon  the  plaintifi's  land,  nor  fired  into  his  decoy  at  the  birds  there, 
the  verdict  should  be  set  aside.  The  court,  however,  said  that  it 
saw  no  ground  for  disturbing  the  verdict  in  point  of  law,  and  that 
the  evidence  was  proper  to  be  left  to  the  jury. 

Another  case  is  that  of  Keehle  v.  Hicheringill,  11  Mod.  74,  130 
3  Salk.  9,  Holt,  14,  17,  19.  It  is  also  reported,  from  Lord  Holt's 
manuscript,  in  11  East,  574.  The  action  was  trespass  on  the  case 
for  disturbing  plaintiff's  decoy.  The  defendant  was  lord  of  a 
manor,  and  had  a  decoy;  and  the  plaintiff  had  also  made  a  decov 
upon  his  own  ground,  which  was  next  adjoining  to  defendant's 
ground,  and  pretty  near  also  to  defendant's  decoy,  and  therein  the 
plaintiff  had  decoy  and  other  ducks,  whereof  he  made  considerable 
profit.  It  appears,  from  the  report  of  the  case  in  Holt's  Reports, 
at  page  17,  that  the  defendant  was  upon  his  own  land  when  he 
shot  off  his  gun.  The  declaration  alleged  that  defendant  resorted 
to  the  head  of  the  defendant's  pond,  and  there  discharged  six  guns 


506  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

laden  with  gunpowder,  and,  with  the  noise  and  stench,  drove  away 
the  wildfowl  then  being  in  defendant's  pond,  with  design  to 
damnify  the  plaintiff  and  to  frighten  his  wildfowl  from  his  decoy. 
It  was  held  the  action  would  lie. 

The  same  principle  is  maintained  by  the  Supreme  Court  of  Ohio 
in  State  v.  Shannon^  36  Ohio  St.  423.  The  court  declared  the 
j'ight  of  private  ownership  in  the  bed  of  the  Sandusky  River  to 
be  in  the  riparian  proprietor.  In  this  case  Shannon  was  arrested 
for  violation  of  a  Statute  which  made  it  penal  for  any  person  who, 
liaving  received  written  or  verbal  notice  from  any  owner  of  in- 
closed and  improved  lands,  or  any  lands  the  boundaries  of  which 
are  defined  by  stakes,  posts,  watercourses  or  marked  trees,  not  to 
hunt  thereon,  shoot  at,  kill  or  pursue  with  such  intent  on  such 
lands  any  of  the  birds  or  game  mentioned  in  the  Act  concerning 
game,  or  upon  any  land  upon  which  a  notice  is  posted  in  a  con- 
spicuous place:  "No  shooting  or  hunting  allowed  on  these  prem- 
ises." The  com.plaint  charged  Shannon  with  shooting  and  killing 
wild  ducks  on  the  land  of  Tindall,  situate  in  said  county,  etc. 
Tindall  was  the  owner  of  land  bounded  on  one  side  by  the  San- 
dusky River, —  a  navigable  stream, —  and  Shannon,  on  the  lOth  of 
October,  1877,  when  the  killing  of  wild  duck  was  not  prohibited 
by  statute,  was  in  a  skiff  on  Sandusky  River,  between  the  middle 
thereof  and  the  shore  owned  by  Tindall,  from  which  position  he 
shot  and  killed  wild  ducks  swimming  in  and  flying  over  the  water 
between  said  shore  and  the  middle  of  the  river.  Boards  inscribed 
in  legible  English  characters,  "  No  shooting  or  hunting  allowed  on 
these  premises,"  were  set  up  in  conspicuous  places  on  the  shore, 
and  Shannon  had  been  notified  by  Tindall  not  to  shoot  or  hunt  on 
his  lands.  The  position  occupied  by  Shannon  on  the  river  was 
within  the  limits  of  navigation  as  used  by  boats  and  other  water- 
craft  engaged  in  commerce,  and  the  public  generally  had  been  ac- 
-customed  to  fish  and  kill  wild  ducks  in  the  same  location  upon  the 
river.  Mcllvaine,  Ch.  J.,  in  delivering  the  opinion,  said:  "  It  is 
claimed,  however,  that  this  Statute  was  not  intended  to  protect 
hinds  covered  by  the  water  of  a  navigable  river.  A  majority  of 
the  court  can  see  no  grounds  upon  which  lands  covered  by  navi- 
gal)le  streams  should  be  excluded.  They  are  as  much  the  subject 
■of  private  owuersliip  as  unnavigable  streams.    There  is  no  distinc- 


«Chap.  XXIIL]       RESTRICTIONS    UPON    FISHING  AND  HUNTING.         507 

tion  between  tliem  made  by  the  terms  of  the  Statute.  True,  navi- 
gable streams,  in  this  State,  are  declared  to  be  public  highways; 
but  the  right  to  use  a  public  highway  is  not  abridged  by  protecting 
the  owner  of  the  fee  in  the  exclusive  right  of  killing  game  therein. 
Travel  and  commerce  are  not  thereby  hindered.  And  as  the  power 
of  the  Legishiture  to  protect  game,  or  tlie  exclusive  right  of  the 
owner  of  land  to  kill  the  same  on  his  own  premises,  is  as  ample 
over  land  covered  by  water,  whether  navigable  or  unnavigable,  as 
it  is  over  dry  land;  and,  as  there  is  no  attempt  to  distinguish  be- 
tween them  in  this  Statute, — we  must  hold  that  all  alike  are  in  the 
protection  of  this  Statute."  In  each  of  these  cases,  it  was  said  by 
the  court  in  Sterling  v.  Jaclcson,  69  Mich.  488, 14  West.  Eep.  2-29, 
the  defendant  "  was  where  he  had  a  right  to  be  "  at  the  time  he 
•committed  the  grievance  complained  of;  nevertheless  this  fact  did 
not  justify  him  in  doing  an  act  the  direct  consequence  of  which 
was  to  injure  the  owner  of  the  land  for  his  own  benefit.  It  does 
not  follow  that,  because  a  person  is  where  he  has  a  right  to  be,  he 
cannot  be  held  liable  in  trespass.  A  person  has  the  right  to  drive 
his  cattle  along  the  public  highway,  but  he  has  no  right  to  depas- 
ture the  grass  with  his  cattle,  in  the  highway  adjoining  the  land 
of  another  person. 

Also,  a  person  has  the  right  to  travel  along  the  public  high w^ay, 
but  this  gives  him  no  right  to  dig  a  pit,  or  remove  the  soil,  or  in- 
cumber it  in  front  of  lands  belonging  to  another.  In  Sterling  v. 
Jackson  it  was  accordingly  held  that  the  defendant  had  tlie  riofht 
of  using  the  waters  of  the  bay  for  the  purpose  of  a  public  high- 
way in  the  navigation  of  his  boat  over  it;  but  he  had  no  right  to 
interfere  with  the  plaintiff's  use  thereof  for  hunting,  which  be- 
longed to  him  as  the  owner  of  the  soil.  The  public  had  a  right  to 
Tise  it  as  a  public  highway;  but  everj^  other  beneficial  use  and  en- 
joyment belonged  to  the  owner  of  the  soil.  As  owner  of  the  fee 
of  the  soil  under  the  Avater  he  is  entitled  to  such  exclusive  rijrht. 

There  were  two  opinions  dissenting  from  the  judgment  of  the 
three  concurring  judges,  and  as  these  present  the  opposing  doctrine 
in  the  strongest  light,  and  as  most  according  with  republican  ideas, 
they  will  be  given  in  substance.  In  the  opinion  by  Morse,  J.,  he  as- 
sumes that  it  must  be  considered  as  well  settled  that  no  man  has 
any  property  in  w'ildfowl  until  he  has  killed  or  captured  the  same. 


508  IMPOSED   DUTIES,  PEKSONAL.  [Part  li- 

lt makes  no  difference  whose  land  thej  are  flying  over,  or  upon 
whose  soil  or  water  they  are  resting  or  feeding.  Such  passing 
over  or  stopping  upon  the  premises  gives  the  owner  of  the  same 
no  more  property  in  them  than  if  they  were  on  or  over  the  lands 
of  another.  If  so,  the  land  owner  could  kill  and  destroy  wild  ani- 
mals or  birds  without  any  reference  to,  or  regard  for,  our  Game 
Laws,  if  they  were  upon  or  flying  over  his  premises  at  any  time,  as- 
the  law  could  not  well,  under  our  State  Constitutions,  limit  him 
thus  in  the  use  of  his  property. 

If  any  person  is  rightfully  upon  the  premises  of  another,  then,, 
it  is  insisted,  he  has  the  same  right,  under  the  law,  to  kill  and  cap- 
ture the  game  thereon,  and  to  liold  the  same  as  his  property,  after 
the  killing  or  capture,  as  the  owner  himself  would  have. 

The  question  then  is,  Has  a  man  lawfully  upon  a  navigable- 
stream,  a  public  higliNvay  or  any  body  of  navigable  water,  a  right. 
to  kill  wild  game  upon  such  water,  or  flying  over  the  same  ? 

Section  65. — Game  and  Forestry  Laics. 

"We  can  borrow  no  light  in  this  discussion  from  the  English- 
Game  and  Forestry  Laws,  which  are  not  a  part  of  our  common 
law,  and  which  are  repugnant  and  hostile  to  the  theory  of  our  in- 
stitutions. The  wild  game  and  lish  abounding  in  our  woods  and 
waters  have  never  been  the  property  of  the  general  government 
or  of  the  State,  in  the  sense  that  they  were  held  the  property  of 
the  Crown  in  England.  No  man  here  is  granted  special  permission 
by  the  national  or  state  government  to  kill  game  or  catch  lish  ex- 
clusively at  certain  times  or  in  certain  places.  Our  Game  and  Fish 
Laws  are  general,  and  apply  to  and  govern  the  whole  people.  Tim 
fish  of  our  waters,  and  the  game  of  our  woods,  and  the  wild  birds 
of  the  air,  belong  to  the  People,  and  not  to  the  Crown,  and  should 
always,  when  they  can  be  captured  or  killed  without  detriment  to- 
private  rights,  be  preserved  to  the  people. 

Game  and  Forestry  Laws  are  not  in  harmony  with  the  American 
idea,  and  are  of  late  origin  in  the  history  of  our  country.  Such 
laws  can  only  be  supported  and  justified  on  the  ground  that  the 
game  is  fast  disappearing  and  ought  to  and  must  be  protected  and 
preserved  for  the  use  and  benefit  of  the  people, —  for  the  general 


Chap.  XXIII.]  GAME    AXD    FORESTRY    LAWS.  509 

public,  and  not  for  a  specified  few.  Our  Fish  and  Game  Laws 
have  not  been  passed  for  the  express  benefit  of  chibs  of  weahhy 
sportsmen,  who  can  afford  to  buy  up  or  lease  all  the  land  alon>;' 
the  navigable  streams  and  lakes  of  a  State,  and  thus  shut  out 
the  poor  man  who  loves  the  rod  or  gun  as  well  as  they  do,  and 
who,  in  the  spirit  of  our  institutions,  has  a  common  right  watli 
them  in  the  "  fowl  of  the  air  and  the  fish  of  the  sea." 

Large  expenditures  of  money  drawn  by  taxation  from  all  the 
people,  rich  and  poor, —  the  poor  man  as  usual  paying  at  least  his 
full  proportionate  share,  if  not  more, — are  being  made  annually  to 
stock  the  public  watei'S  with  brook  trout  and  otlier  food  fishes. 
The  expenses  of  game  wardens  and  their  deputies,  in  maintaining 
and  enforcing  the  Game  Laws,  are  borne  by  all  under  the  usual 
methods  of  taxation. 

The  Pilgrim  fathers,  fleeing  to  the  new  world  from  the  tyran- 
nies of  a  despotic  era  in  the  history  of  the  mother  country,  brought 
with  them  not  only  religious  ideas,  but  many  other  notions  as  to 
the  rights  of  the  common  people,  not  then  pi*evalent  or  counte- 
nanced in  England.  And  the  old  Colon}'  of  Massachusetts  Bay 
•early  adopted  laws  looking  toward  the  establishment  of  a  common 
right  in  the  people  to  the  fish  and  wild  game,  then  abounding  in 
the  waters  and  woods  of  the  new  world. 

In  1641  or  1647  it  was  enacted:  "Every  inhabitant  who  is  a 
householder  shall  have  free  fishing  and  fowling  in  any  great  ponds, 
bays,  coves  and  rivers,  so  far  as  the  sea  ebbs  and  flows,  within  the 
precincts  of  the  town  where  they  dwell,  unless  the  freemen  of  the 
town  or  the  general  court  have  otherwise  appropriated  them,  pro- 
vided that  no  town  shall  ajjpropriate  to  any  particular  person  or 
persons  any  great  pond  containing  more  than  ten  acres  of  land,  and 
that  no  man  shall  come  upon  another's  property  without  their 
leave,  otherwise  than  is  hereafter  expressed." 

Another  and  later  section  in  the  same  Act  provided  :  "And 
for  great  ponds  lying  in  common,  though  within  the  bounds  of 
some  town,  it  shall  be  free  for  any  man  to  fish  and  fowl  there,  and 
may  pass  and  repass  on  foot  through  any  man's  property  for  tliat 
end,  so  that  they  trample  not  upon  any  man's  corn  or  meadow," 

Chief  Justice  Shaw  says  "  that  the  great  purpose  of  this  Act  was 
to  declare  a  great  principle  of  public  right,  to  abolish  the  Forest 


510  IMPOSED   DUTIES,  PERSONAL.  [Part   II. 

Laws,  the  Game  Laws  and  the  laws  designed  to  secure  several  and 
exchisive  iisheries,  and  to  make  them  all  free."' 

In  Maine  the  right  to  fish  in  navigable  waters,  even  over  private- 
soil,  was  secured  to  the  public,  and  it  is  there  held  that  a  mere 
grant,  by  the  State,  of  land  covered  by  navigable  water,  confers 
upon  the  grantee  no  greater  rights  than  he  would  have  had  had 
he  owned  it  without  such  direct  grant  and  as  a  riparian  owner.* 

The  principle  of  free  fishing  and  fowling  has  passed  into  the 
Organic  Law  of  Vermont,  where  shooting  on  uninclosed  lands  and 
fishing  in  beatable  waters  are  declared  free  to  the  public* 

The  common  law  of  England,  as  far  as  navigable  waters  were- 
concerned,  recognizing  the  property  of  tlie  fish  therein  to  be  in 
the  Crown,  gave  no  right  of  fishing  to  the  owners  of  the  shore  su- 
perior to  that  of  the  public,  except  bj  the  granting  of  special 
rights  and  privileges  by  the  King.  But  navigable  rivers  were  lim- 
ited, in  the  meaning  of  the  law,  to  streams  having  an  ebb  and  flow 
of  the  tide,  and  their  navigability  extended  no  farther  than  the- 
tides  went.  All  persons  had  a  common  and  general  right  of  fish- 
ing in  the  sea,  and  in  all  bays,  coves,  branches  and  arms  of  the- 
sea,  and  in  all  other  navigable  or  tide  waters.  This  right  covered 
the  gathering  of  shellfish  on  the  bottom,  as  well  as  the  taking  of 
swimming  or  floating  fish.  But  in  streams  or  bodies  of  water 
where  the  tides  did  not  ebb  or  flow,  under  the  common  law,  the- 
riparian  proprietor,  if  he  owned  the  land  on  both  sides  of  the 
stream,  conld  prevent  anyone  coming  upon  his  land  and  taking 
fish  out  of  the  stream,  and  the  same  rule  was  held  to  extend,  as- 
far  as  his  ownership  of  the  soil  went,  to  the  thread  or  centre  of  the 
stream.  Within  such  limits  his  right  of  fishing  was  sole  and  ex- 
clusive, unless  restricted  by  some  local  law  or  well-established  usage 
or  custom  of  the  place. 

It  will  thus  be  seen  that  the  common  law  gave  the  riparian 
owner  the  right  of  exclusive  fishing  upon  streams  running  through 
or  along  the  line  of  his  lands,  because,  such  streams  not  being  navi- 
gable, no  person  had  any  right  to  be  upon  them,  within  his  prem- 

'See  Com.  v.  Alger,   7  Cash.  53-68;   Weston  v.  Sampson,  8  Cush.  347;   West 

Rorbury  v.  Stoddard,  7  Allen,  158. 
^Parker  v.  Cutler  Mill  D  im  Co.  20  Me.  353;  Moulton  v.  Libbey,  37  Me,  472;. 

Parsons  v.  Clark,  76  Me.  478. 
«Vt.  Const.  §  40. 


Chap.  XXIII.]  GAME    AND    FORESTRY    LAWS.  511 

ises,  or  opposite  them  upon  his  side  of  the  stream,  witliout  his 
consent  or  permission,  any  more  than  they  would  have  the  right 
to  be  upon  his  lands  without  such  consent. 

But  the  great  Korthwest  is  governed  in  this  respect  by  the  Or- 
dinance of  17S7,  which  provided  that  "  the  navigable  waters  lead- 
ing into  the  Mississippi  and  the  St.  Lawrence,  and  the  carrying 
places  between  the  same,  shall  be  common  highways,  and  forever 
free,  as  well  to  the  inhabitants  of  the  said  territory  as  to  the  citi- 
zens of  the  United  States  and  those  of  any  other  States  that  may 
be  admitted  into  the  confederacy,  without  any  tax,  impost  or  duty 
therefor."  This  ordinance  applies  not  only  to  the  great  lakes,  but 
to  all  the  streams  discharging  their  waters  into  the  lakes  or  into 
the  Mississippi  and  its  tributaries,  upon  which  had  been  floated 
prior  to  the  adoption  of  the  ordinance  the  commercial  products  of 
the  country,  not  only  in  vessels,  but  in  batteaux  and  canoes.  It 
must  also  be  remembered  that  this  commerce  then  consisted  mainly 
of  fish  and  the  skins  of  wild  animals.  It  was  an  ordinance  saving 
to  the  hunter  an  _1  the  fisherman  the  right  to  navigate  these  waters, 
free  of  charge,  upon  his  way  to  market  the  products  of  the  chase; 
and  it  needs  no  great  stretch  of  construction  to  hold  that  it  also 
preserved  to  him  forever  the  right  to  hunt  and  fish  upon  them. 

It  follows,  therefore,  from  the  clear  language  and  intent  of  this 
ordinance,  that  the  navigability  of  the  waters  of  the  Great  Lakes  and 
of  navigable  streams  does  not  depend  upon  any  tidal  ebb  and 
flow.  No  such  ebb  and  flow  exists  in  the  whole  northwest  ter- 
ritory. 

There  are  decisions,  in  great  number,  already  cited,  which 
clearly  state  the  conditions  which  constitute  navigability  in  tiie 
streams  and  lakes  of  the  States.  If  the  common-law  doctrine  pre- 
vailed, there  w^ould  be  no  navigable  water  in  the  Northwest,  or 
bordering  upon,  although  parts  of  it  are  nearly  surrounded  by 
great  inland  seas,  but  seas  without  tides. 

If  the  right  of  the  public  to  fish  in  any  body  of  water  depends 
upon  its  navigability,  as  it  seems  to  under  the  common  law,  then, 
if  the  navigability  is  extended,  as  it  is  here,  to  the  great  lakes  and 
other  lakes  and  streams  in  the  States,  which  are  nontidal  waters, 
in  reason,  the  public  right  to  fish  therein  ought  to  follow 
such  navigability  as  extended  by  our  laws.    And,  disregarding  the 


512  IMPOSED   DUTIES,  PERSONAL.  [Part   II. 

<jrame  and  Forestry  Laws  of  the  old  country,  which  have  no  place 
here,  and  do  not  belonoj  to  our  common  law,  the  right  of  fowling 
must  be  determined  upon  the  same  principles  as  the  right  of 
fishing. 

It  has  been  held  in  Ohio  that  the  right  of  fishing  in  Lake  Erie 
and  its  bays  is  not  limited  to  the  proprietors  of  its  shores,  and  that 
such  right  is  as  public  as  if  their  waters  were  subject  to  the  ebb 
and  flow  of  the  tide.* 

In  a  later  case  it  was  further  held  in  Ohio  that  a  landlocked  bay 
of  Lake  Erie,  connected  by  an  opening  with  the  lake,  might  be 
susceptible  of  private  ownership  by  grant;  but,  the  waters  of  the 
same  being  navigable,  such  ownership  must  be  held  subject  to  the 
public  rights  of  navigation  and  fishing;  and  that  no  mere  grant  of 
the  land  covered  by  such  waters  destroys  this  public  right.  "  The 
private  grantee  of  the  land  cannot  do  anything  that  will  interfere 
with  the  channel,  or  hamper  the  passage  of  water-craft  through  it. 
But  he  may,  without  the  limits  of  the  channel,  erect  fishing-houses 
or  such  other  structures  as  his  means  and  the  depth  of  the  water 
will  permit;  he  may  convert  shallow  portions  into  cranberry  patches; 
he  may  fill  up  other  parts  and  make  solid  ground.  Although  such 
action  by  him  may  lessen  the  water  surface  available  for  the  fish- 
ing boats,  the  fishermen  cannot  complain.  Such  public  right  to 
fish  always  yields  to  any  permanent  improvement  by  the  owner  of 
the  land  on  which  the  water  rests."  * 

It  seems  that  the  right  of  shooting  wildfowl  upon  the  water 
rests  upon  the  same  great  principle  as  the  right  of  taking  fish 
therein.  Both  fish  and  waterfowl  are  the  property  of  him  who 
kills  or  captures  them.  Neither  of  them  have  any  relation  to  or 
connection  with  the  soil  beneath  the  water,  and  are  in  no  sense, 
and  by  no  sophistry  of  reason,  even  a  part  of  the  land,  and  do  not 
make  their  home  upon  it  save  as  they  swim  in  or  upon  the  waters 
that  cover  it.    They  both  belong  to  the  water  rather  than  the  land. 

^Sloan  V.  Biemiller,  34  Ohio  St.  492.  See  also  as  to  the  other  great  inland  lakes 
of  the  United  States,  State  v.  Oilmanton,  9  N.  H.  461;  Slate  v.  Franklin 
Falls  Go.  49  N.  H.  250;  Fletcher  v.  Phelps,  28  Vt.  257;  Austin  v.  Rutland 
R.  Co.  45  Vt.  215:  Champlain  &  St.  L.  R.  Co.  v.  Valentine,  19  Barb.  485; 
Ledyard  v.  Ten  Eyck,  36  Barb.  103;  People  v.  Gutchess,  48  Barb.  656.  See 
also  West  Roxbury  v.  Stoddard,  7  Allen,  167;  Canal  Comrs.  v.  People,  5 
Wend.  423-451. 

^Hogg  V.  Beerman,  41  Ohio  St.  81-98. 


I 


Chap.  XXIIL]  GAME    AND    FORESTRY    LAWS.  513 

Both  are  used  largely  for  food,  and  are  great  sources  of  sustenta- 
tion  to  mankind;  and  the  common  right  and  pri\-ilege  of  all  to 
take  them  upon  and  in  the  public  waters  should  never  be  denied 
in  a  free  country,  or  farmed  out  as  a  special  favor  to  a  fortunate 
few. 

In  all  the  cases  in  the  United  States  where  it  has  been  decided 
that  the  exclusive  right  of  fishing  belonged  to  the  owners  of  the 
banks  of  the  lakes  or  streams,  it  has  been  confined  to  such  hikes 
and  streams  as  were  not  navigable  in  fact,  or  M'holly  inclosed  with- 
in the  lands  of  one  proprietor,  or  the  courts  have  made  the  same 
distinction  that  prevails  in  England  in  applying  the  principles 
there  laid  down  as  to  nontidal  waters,  without  taking  notice  that 
a  navigable  stream  here  is  not  confined  to  one  having  an  ebb  and 
flow  of  the  tide,  but  to  any  one  that  is  navigable  in  fact.  As  be- 
fore said,  by  the  common  law  of  England,  fishing  is  free  in  all 
navigable  waters.  Applying  this  rule  of  the  common  law  prop- 
erly to  all  our  navigable  streams,  discarding  the  question  of  tide- 
waters, wliich  cannot  prevail  here,  the  right  of  the  public  to  fish 
must  be,  and  ought  to  be,  free  in  all  our  streams  and  lakes  that  are 
navigable  in  fact  and  declared  navigable  under  our  laws. 

The  ownership  of  such  soil,  it  is  said,  gives  no  propert}-  to  the 
landed  proprietor  either  in  the  fish  or  wildfowl.  They  are  not 
like  the  rocks  in  the  bottom  of  the  stream,  or  the  ice  that  forms 
upon  its  surface.  They  are  wild  things  in  which  no  man  has  prop- 
erty while  they  are  alive  and  untamed.  And  there  is  no  case  hold- 
ing that  the  great  inland  lakes  of  this  country  are  not  free  to  all 
in  fishing  and  fowling.  The  principles  governing  non-tidal  waters 
in  England  are  not  applied  to  them,  and  it  is  claimed  no  sound 
reason  exists  why  there  should  be  any  distinction  made  in  this  re- 
spect between  these  lakes  and  other  navigal)le  waters.* 

In  some  of  the  decisions  the  right  of  the  riparian  owner  seems 
to  be  confined  to  the  use  of  nets  and  seines  in  connection  with  the 
lands  possessed  by  him.* 

'An  examination  of  the  following  cases  will,  it  is  said,  show  the  basis  of  the 
rulings  to  be  as  above  stated:  Hooker  v.  C'ummings,  20  .Johns.  90;  Waters 
V.  Lilley,  4  Pick.  145;  Com.  v.  Chapin,  5  Pick.  199;  McFarlin  v.  Easex 
County,  10  Oush.  304;  Beckinan  v.  Kreamer,  43  111.  447;  Adams  v.  Peese, 
2  Conn.  481;  Smith  v.  Miller,  5  Mason,  191. 

*  Washington  Ice  Co.  v.  Shortall,  101  III.  46,  citing  Ang.  Waters,  §  67. 

33 


514  IMPOSED   DUTIES,  PERSONAL.  [Part    II, 

No  decision  is  known  in  the  IJuited  States  that  prohibits  one 
lawfully  upon  the  water,  as  in  transit  upon  a  navigable  river,  from 
taking  fish  therein  with  hook  and  line,  and  the  majority  of  the- 
members  of  the  Supreme  Court  of  Michigan,  as  it  was  then  con- 
stituted, seem  to  have  settled  the  doctrine  in  that  State  that  such 
fishing  cannot  be  complained  of  by  riparian  owners,  in  Lincoln  w 
Davis,  53  Mich.  391.  It  may  also  be  stated  in  this  connection 
that  the  right  to  fisheries  in  the  Susquehanna,  Delaware  and  other 
large  rivers  of  Pennsylvania,  though  the  tide  does  not  ebb  and 
flow  in  them,  is  vested  in  the  State  and  open  to  all,'  And  in 
North  and  South  Carolina  fishing  is  held  free  and  common  to  all 
in  the  navigable  fresh-water  streams  of  those  States." 

The  right  to  take  fish  with  hook  and  line  in  navigable  waters^ 
must  necessarily  carry  with  it  the  right  to  stop  and  anchor  one's, 
boat,  and  to  stay  in  one  place  for  shorter  or  longer  periods,  as  the 
occasion  requires. 

If  the  riparian  proprietor  owns  the  soil  in  the  bed  of  the  stream,. 
yet,  nevertheless,  such  anchorage  is  no  damage  to  him  unless  he 
owns  also  the  fish  in  the  river  or  has  the  exclusive  right  of  taking 
them  therein.  There  is  no  injury  to  his  property  by  such  anchor- 
age, and  there  can  be  no  claim  for  damages  without  injury.  And 
it  would  seem  that  the  principle  governing  and  controlling  the 
right  to  fish  with  hook  and  line  must  also  govern  and  control  the 
right  to  shoot  wild  ducks. 

Under  the  well-settled  law  of  Michigan,  the  proprietors  of  land 
upon  the  banks  of  a  navigable  stream,  like  the  Grand  Kiver,  own 
the  bed  of  the  stream  to  the  centre.  One  has,  however,  the  right 
to  pass  up  and  down  that  stream  in  a  rowboat,  and  no  landed  pro- 
prietor of  its  banks,  and  no  association  of  sportsmen,  who  may 
have  leased  for  several  miles  the  lands  upon  both  sides  for  shoot- 
ing or  fishing  purposes,  can  prevent  his  doing  so. 

A  traveler  for  pleasure  has  as  much  right  upon  navigable  water 
as  a  traveler  upon  business.  The  Grand  River  is  a  public  com- 
mon highway,  upon  which  are  floated  annually  large  amounts  of  logs 

^Carson  v.  Blazer,  2  Binn.  475;  Shrunk  v.  Schuylkill  Nav.  Go.  14  Serg.  &  R. 

71 ;  Tinicum  Fishing  Co.  v.  Carter,  51  Pa.  21. 
^Cales  V.  Wadlington,  1  McCord,  L.  580;  Collins  v.  Benbury,  3  Ired.  L.  277, 

5  Ired.  L.  118;  WiUon  v.  Forbes,  2  Dev.  L.  30;  Boatwright  v.  Bookman,  Rice, 

L.  447;  Fagan  v.  Armistead,  11  Ired.  L.  433. 


Chap.  XXIII.]  GAME    AND   FORESTRY    LAWS.  515 

and  lumber,  and  one  with  no  business  venture  upon  its  bosom  has 
a  right  upon  it  equal  to  the  log-runner;  and  the  proprietor  of  the 
soil  under  the  bed  of  tlie  stream  has  no  authority  or  power  to  drive 
him  away. 

So  it  is  claimed' anyone  has  the  right  to  cast  his  line  into  its  wa- 
ters, to  lure  with  hook  or  fly  the  bass  and  perch  into  his  hand  or 
landing-net,  or  to  stop  with  fowling-piece  the  flight  of  the  teal  and 
mallard  as  they  pass  by  or  over.  For  these  things  are  also  free, 
and  the  property  of  no  man  until  taken. 

But  it  is  claimed  that  the  proprietor  of  the  banks  or  their  lessees- 
have,  under  the  law,  the  exclusive  right  to  flsh  and  shoot  upon  navi- 
gable streams;  that  they  can  prevent  one  taking  fish  in  navigable- 
rivers  or  shooting  wildfowl  flying  over  it;  that  one  has  no  right  to- 
anchor  his  boat  or  stop  it  for  a  moment  to  bait  his  hook,  load  his- 
gun,  pull  in  a  fish  or  pick  up  a  duck,  if  by  so  doing  he  has  to  cast 
anchor  or  fasten  to  the  soil  in  the  bed  of  the  stream.  Such  acts- 
are  trespasses,  it  is  argued,  upon  the  land  of  the  riparian  owner. 

If  this  principle  be  established  as  law,  then  there  can  be  no  fish- 
ing or  shooting  for  the  man  without  riparian  rights,  or  who  is  too 
poor  or  lowly  to  gain  admittance  to  a  club,  except  by  license  or 
permission  from  his  more  fortunate  neighbor,  save  upon  the  sur- 
face of  the  great  lakes  or  upon  government  or  state  land,  at  a  gi'cat 
distance  from  his  home. 

It  is  a  matter  of  common  knowledge  that  clubs  of  wealthy  sports- 
men are  now  following  up  the  planting  of  brook  trout  in  waters 
by  the  fish  commissioners,  and  leasing,  as  far  as  possible,  the  lands 
through  which  the  streams  so  stocked  run,  for  the  purpose  of 
aggrandizing  to  themselves  the  benefits  of  the  endeavor  of  the 
State  to  increase  the  supply  of  fish  food  at  the  public  expense. 

This  is  the  practical  selling  out  of  the  public  waters,  the  navi- 
gable streams  of  the  State,  for  purposes  of  fishing  and  fowling,  to 
a  favored  few,  to  be  stocked  and  replenished  year  by  year  at  the 
expense  of  the  public,  and  the  shutting  out  of  the  great  mass  of 
the  people,  who  bear  the  burden  of  such  expense,  from  a  right 
and  enjoyment  as  dear  to  some  of  them,  at  least,  as  it  can  be  to- 
any  riparian  owner  along  such  streams,  or  any  member  of  a  club- 
or  syndicate  who  has  leased  such  owner's  premises. 

It  is  well-settled  law,  with  no  respectable  authority  disputing  it. 


516  IMPOSED    DUTIES,  PERSONAL.  [Part  II. 

that  even  where  a  person  owns  the  soil  by  grant,  and  the  waters 
of  the  sea  or  a  navigable  lake  encroach  upon  it,  and  it  thereby  be- 
comes covered  with  navigable  water,  and  a  part  of  the  sea  or  lake, 
until  such  waters  recede,  or  the  land  is  otherwise  reclaimed,  and, 
SO  long  as  it  continues  navigable,  the  public  right  to  use  it  for  pur- 
poses of  navigation  prevails.  As  long  as  it  remains  as  it  is,  the 
people — the  common  public — have  a  right  to  navigate  it.  They 
can  cross  ov^er  it,  and  pass  up  and  down  it,  and  the  owner  is 
powerless  to  stop  them. 

And  if  the  people  have  this  right  to  pass  over  it,  they  have  the 
right  to  take  fish  in  its  waters  by  hook  and  line,  or  in  any  other 
way  common  to  all  under  our  laws.  They  have  the  right  to  kill 
or  capture  ducks  or  other  wildfowl  resting  or  feeding  upon  its 
waters  or  flying  over  it.  They  have  the  right  to  call  such  ducks 
or  other  wildfowl  by  all  the  devices  known  to  sportsmen,  and  not 
prohibited  by  the  General  Grame  Laws,  and  in  the  seasons  not  in- 
hibited by  such  statutes,  from  the  air,  land  or  lake,  upon  or  over 
the  waters  of  a  navigable  bay,  as  long  as  it  shall  remain  such. 

If  an  individual  owns  the  soil  by  grant,  he  has  a  right,  no  doubt, 
to  reclaim  it  by  dykes  or  levees,  but  until  he  does  so  the  public 
has  the  right  to  use  it  as  long  as  its  waters  are  navigable.  It  is  a 
mistake  to  suppose  that  there  has  ever  been  any  decision  or  ruling 
which  conclusively  settles,  directly  or  by  analogy,  the  contention 
often  made  that  the  riparian  owners  of  the  shores  of  navigable 
waters  have  an  exclusive  right  to  take  the  fish  therein  or  kill  the 
wildfowl  resting  or  feeding  thereon,  or  flying  over  the  same.  Nor 
does  the  killing  of  game  upon  the  premises  of  another  invest  the 
property  in  such  game  in  the  land  owner,  even  though  the  person 
killing  such  game  may  be  a  trespasser.  There  is  no  analogy  be- 
tween ice  forming  on  such  waters,  and  the  fish  or  fowl  in  or  upon 
them.  The  ice  belongs  to  the  soil  by  reason  of  its  attachment 
thereto,  and  therefore  is  considered  by  most  of  the  authorities  as 
a  part  of  the  land,  while  fish  and  fowl  do  not  belong  to  the  soil, 
and  are  no  part  of  the  land.  There  is  no  proprietorship  or  prop- 
erty in  them  until  captured  or  killed. 

In  Bigelow  v.  Shaio,  C5  Mich.  341,  8  West.  Eep.  781,  the  own- 
ership of  ice  is  determined,  and  the  various  cases  bearing  upon  the 
subject,  and  upon  the  rights  of  riparian  owners  on  navigable  and 


Chap.  XXIII.]  GAME    AND    FOKESTRY    LAWS.  517 

non-navigable  waters,  are  cited  or  reviewed.  It  is  tliere  held  that 
the  ownership  of  the  soil,  and  not  the  possession  of  the  water,  car- 
ries the  property  in  the  ice  forming  upon  streams  and  ponds.' 
None  of  the  cases  cited  give  any  support  to  the  riparian  owner's 
claim.' 

In  Lincoln,  v.  Davis^  53  Mich.  375,  2[r.  Justice  Cainpl)ell,  in 
the  prevailing  opinion,  says:  "  Such  fishing  as  is  done  with  lines 
from  boats  in  narrow  streams  cannot  be  complained  of  by  ripariaji 
owners.  The  fish  are  like  any  other  animalsycrte  naturce,  and,  in 
this  region,  have  always  been  regarded  as  open  to  capture  by  those 
who  have  a  right  to  be  where  they  are  captured."  This  language 
seems  to  settle  the  question  of  fishing  and  must,  by  every  legal 
analogy,  apply  to  wildfowl  as  well  as  to  fish  and  animals. 

In  Marsh  v.  CoXby^  39  Mich.  626,  and  Burroughs  v.  WhitwcuVy 
59  Mich.  279,  the  decisions  were  based  upon  principles  applicable 
to  non-navigable  waters  and  to  ponds  whose  soil  and  shores  were 
held  by  grant.  In  neither  case  could  the  party  claiming  the  right 
to  take  fish  in  opposition  to  the  right  of  the  land  owner  get  his 
boat  upon  the  pond  without  trespassing  upon  the  premises  of  such 
owner,  and  he  had  no  right  to  be  there  for  any  purpose. 

In  the  latter  case  he  had  been  forbidden  entry  upon  such  prem- 
ises. In  the  case  of  Marsh,  v.  Colhy  he  was  held  not  liable  in  tres- 
pass because  he  had  not  been  so  forbidden  before  commencement 
of  suit.  In  neither  case  was  it  adjudged  that  he  could  not  have 
taken  fish  with  hook  and  line  if  he  had  been  lawfully  upon  the 
pond  with  his  boat,  or  that  the  fish  in  the  pond  was  the  exclusive 
property  of  the  land  owner. 

As  to  fishing  with  nets  and  other  appliances  which  require  stak- 
ing or  fastening  to  the  soil,  the  customary  exclusive  use  for  many 
years,  by  the  owners  of  lands  fronting  upon  the  great  lakes  and 
the  rivers  connecting  them,  of  the  waters  adjoining  their  premises, 

■  See  also  Clute  v.  Fisher,  65  Mich.  48,  8  West.  Rep.  121;  Lorman  v.  Benson, 

8  Mich.  18;  People's  Ice  Vo.  v.  TJte  Excelsior,  44  ]^lich.  229;  Uiggins  v. 

Kmterer,  41  -Mich.  318. 
''See  Rice  v.  Ruddiman,  10  Mich.  125;  Watson  v.  Peters,  26  Mich.  508;  Max- 

well  V.  Bay  City  Bridge  Co.  41  Mich.  453;  Richardson  v.  Prentiss,  48  Mich. 

88;  Pere  Marquette  Boom  Co.  v.  Adams,  44  Mich.  404;  Clark  v.  Cainpau, 

19  Mich.  328;  Bay  City  Gaslight  Co.  v.  Industrial  Works,  28  Mich.  182; 

Webber  v.  Pere  Marquette  Boom  Co.  62  Mich.  626;  Turner  v.  Holland,  65 

Mich.  453,  8  West.  Kep.  796. 


518  IMPOSED    DUTIES,  PERSONAL.  [Part  II. 

for  purposes  of  fishery,  has  doubtless  grown  into  a  right  which 
cannot  now  he  well  disputed  or  disturbed.  Such  right  has  been 
recognized  by  the  Legislatures  in  enacting  laws  for  the  better  pres- 
ervation and  protection  of  fish  and  fisheries,  as  extending  to  the 
channel  banks  of  the  rivers,  and  to  one  mile  from  the  beach  or  shore, 
at  low-water  mark  of  the  lakes  and  their  straits,  inlets  and  bays.' 

But  no  such  custom  has  grown  up  as  to  hunting.  The  laws 
also,  as  yet,  have  failed  to  give  to,  or  recognize  in,  the  riparian 
owner  the  absolute  or  exclusive  right  to  shoot  wildfowl  upon  navi- 
gable waters  in  front  of  his  land.  He  can  prevent  any  person  from 
standing  upon  or  occupying  his  land  to  shoot  upon  the  waters,  but 
where  such  person  has  a  right  to  go  with  his  boat  upon  the  water, 
he  has  a  right  to  pursue,  either  for  purposes  of  sport  or  for  a  live- 
lihood, the  wildfowl  found  upon  the  water  or  winging  their  flight 
across  it. 

With  the  right  to  Icill  or  captui-e  such  wildfowl  necessarily  goes 
the  right  to  use  such  means  as  may  be  most  effective  to  accomplish 
such  purpose,  provided  the  captor  keeps  within  the  general  laws 
of  the  State  relating  to  the  j)rotection  of  game.  He  has  the  right 
to  anchor  his  boat  and  to  fasten  his,  decoys  to  the  soil.  It  injures 
no  right  of  the  riparian  owner  except  the  common  right,  that  he 
possesses  with  others,  of  killing  and  capturing  game  where  he  can 
find  it  upon  the  water,  highways  or  public  passages.  It  is  said  in 
the  dissenting  opinion  in  SterUiuj  v.  Jacki^on,  supra^  that  it  is  not 
contended  that  the  soil  was  injured,  but  the  broad  ground  is 
taken  that  the  exclusive  right  to  hunt  wildfowl  in  the  bay  be- 
longs to  the  company  represented  by  the  plaintiff.  It  is  sought 
to  sustain  this  claim  by  the  decisions  of  the  English  and  Irish 
courts.  Its  adoption  here  is  to  bring  into  this  country  that  policy 
of  the  law  relating  to  wild  gam^e  which  dei^rives  every  man  but 
the  landlord,  or  his  lessee,  of  the  heretofore  common  public  right 
to  fish  and  hunt  upon  the  public  ways  and  waters  of  this  country, 
—  a  policy  which  in  the  not  far  distant  future  will  debar  the  poor 
man  from  any  profit  or  pleasure  in  the  pursuit  of  game,  and  some 
time  may  perhaps,  as  in  Ireland,  permit  men  to  Starve  in  sight  of 
streams  and  lakes  abounding  in  fish,  and  woods  filled  with  wild  game. 

'How.  (Mich.)  Stat.   §  2173;  Lincoln  v.  Difois,   53  Mich.  375;  Solomon  v. 
Orosbeck,  65  Mich.  540,  9  West.  Rep.  107. 


Chap,  XXIII.]    DISTINCTION  BETWEEN  RIVERS  AND  STRExVMS.  519 

In  view  of  the  growing  scarcity  of  game,  the  efforts  of  the  States, 
at  public  expense,  to  propagate,  protect  and  preserve  it,  and  the 
evident  disposition  of  a  few  to  ac(pnre  dominion,  through  the  ri- 
parian proprietors,  over  the  inland  navigable  lakes  and  streams, 
and  to  shut  out  the  great  mass  of  the  people  from  the  enjoyment 
of  hunting  and  fishing,  and  thus  acquire  at  least  a  qualified,  if  not 
absolute,  property  in  wild  fowl,  mostly  migratory,  and  seeking 
here  only  resting  and  feeding  grounds  in  certain  seasons  of  tiie 
year,  the  dissenting  judge  in  the  case  last  cited  deemed  it  his  duty 
to  protest  against  any  holding  that  will  deprive  any  man  of  the 
common  right — as  he  claimed — of  all,  to  use  the  public  highway's, 
on  water  and  on  land,  in  the  pursuit  of  fish  and  wild  game,  wliich 
are  the  property  of  him  who  takes  them,  and  which  until  taken 
belong  to  no  one. 

And  he  insists  that,  in  right,  justice  and  law,  the  navigable 
streams  and  other  bodies  of  water,  while  open  to  navigation,  should 
be  forever  free  and  unrestricted  in  fishing  and  fowling  to  all  who 
Jiave  a  right  to  row  a  boat  or  push  a  scow  upon  them. 

Any  other  declaration  of  the  law  than  that  which  shall  forever 
preserve  to  all  the  people  of  this  country  the  right  to  fish  and  hunt 
upon  government  and  state  lands  and  the  public  ways  of  each  State, 
one  in  common  and  equal  with  another,  will  be  a  step  backward, 
and  unworthy  the  expounders  of  the  law  in  a  free  country,  where 
all  are  supposed  to  enjoy  equal  rights  and  privileges  before  the  law. 

Section  66. — Distinctio^^  between  Mavigahle  Rivers 
and  Mere  Logging  Streams  as  affecting  Fish- 
ing and  Hunting  Rights. 

Campbell,  J.^  in  his  dissent  in  Sterling  v.  Jackson,  st'jyra, 
conceives  that  most  of  the  confusion  concerning  the  rights 
of  various  persons  upon  or  concerning  waters  has  come  from 
confounding  entirely  different  things.  There  seems  to  be  a 
notion  that,  inasmuch  as  we  have  generally  in  this  country  re- 
fused to  class  our  great  fresh-water  highways  among  the  category 
of  common-law  navigable  streams  which  were  confined  to  tide-wa- 
ters, we  have  thereby  subjected  them  to  the  condition  of  private 
waters.     But  this  is  not  so.     We  have  transferred  the  name  of 


520  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

navigable  waters  to  our  public  waterways  because  they  are  in  iact 
navigable,  and  there  is  no  substantial  difference  in  the  public  rights 
in  fresh  and  salt  water.  The  only  difference  of  consequence  is  as- 
to  the  ownership  of  the  soil  beneath  them.  By  the  English  law 
the  bed  of  salt  water  belonged,  presumptively,  to  the  Crown.  But 
the  Crown  owned  it  2&jiis  prwatum^  or  private  property,  and  it 
was  not  owned  by  the  public.  It  might  be  owned  by  private  per- 
sons as  royal  grantees.  So  the  fishing  rights  in  such  waters  were 
presumptively  public,  but  were  not  always  so,  as  the  public  right 
was  often  extinguished  by  private  privileges.  And  the  authorities 
indicate  that  one  reason  why  private  lands  in  salt  water  did  not 
presumptively  go  into  the  water  was  because,  during  most  of  tho 
time,  the  water  did  not  come  up  to  the  dry-land  line  so  as  to  make 
a  permanent  boundary,  so  that  in  the  interval  there  was  a  space 
sometimes  water  and  sometimes  land  by  daily  tidal  action.  Some  of 
the  cases  are  referred  to  in  Lorinan  v.  Benson,  8  Mich.  19.  The 
celebrated  treatise  of  Lord  Hale,  De  Jure  Maris  et  Brachiosum 
Ejusdem,  contains  a  large  share  of  the  learning  on  the  subject.  It 
never  made  much  j)ractical  difference  who  owned  the  land  so  long 
as  covered  by  water.  The  only  matter  of  much  interest  concerns 
the  ownership  of  the  shores  and  shallows.  In  civil-law  countries 
some  have  followed  the  Roman  law,  which  in  this,  as  in  some- 
other  matters,  is  in  substance  in  accord  with  our  ancient  law,  and 
recognized  private  ownership  subject  to  the  public  rights.  In 
some  civil-law  countries  the  bed  of  the  streams  was  in  the  hands 
of  tlie  Crown,  subject  to  the  same  public  rights.  In  the  United 
States,  where  there  is  no  potentate  having  private  interests  in  mat- 
ters not  belonging  to  citizens,  all  enjoyment  of  the  use  of  prop- 
erty must  be  public  or  private;  and,  while  there  is  not  absolute 
uniformity,  there  is  a  decided  tendency  to  give  to  private  riparian 
owners  the  jus  pi'ivatum,,  as  far  as  it  is  capable  of  appropriation 
for  private  purposes  without  injury  to  the  public,  and  no  further. 
There  is  really  no  substantial  difference,  in  most  parts  of  the 
United  States,  between  public  rights  in  public  rivers  and  waters, 
whether  fresh  or  salt,  not  parts  of  the  high  seas.  In  England,  as 
already  suggested,  in  addition  to  the  rights  strictly  connected  with 
the  business  of  navigation,  the  public  had  usually  such  rights  of 
fishing  in  salt  water  as  were  practicable,  but  there  were  exceptions 


Chap.  XXIII.]    DISTINCTION  BETWEEN  RIVERS  AND  STREAMS.         521 

of  private  grants  or  franchises  to  the  contrary.  In  fresh  puhlic 
rivers  there  were  also  some  cases  of  general  j^iiblic  fishing,  so  far 
as  it  did  not  require  the  nse  of  the  banks  or  shores,  while  in  other?^ 
the  public  could  not  fish.  Mr.  AVoolrych  intimates  that  the  orig- 
inal condition  was  in  favor  of  the  public  right.' 

It  is  very  difficult,  according  to  all  the  authorities,  to  know  much 
about  the  original  condition  of  affairs  of  this  nature,  for  histories 
are  silent,  and  the  reports  do  not  go  back  far  enough.  But  it  is 
everywhere  admitted  that  originally  the  common  law  concerning 
the  capture  of  wild  creatures  was  in  substance  the  same  as  the 
civil  law,  and  that  the  restrictions  arose  out  of  the  feudal  and 
royal  encroachments.  If  so,  then  it  is  easy  to  see  that  fishing  in 
public  streams  was  of  common  right.  So  far  as  all  wild  animals 
are  concerned,  the  early  text-writers  make  no  diffei-ence  between 
beasts,  fish  and  fowls,  and  are  uniform  in  holding  that  in  all  cases 
they  belong  to  the  captor. 

It  is  the  law  generally  that  the  riparian  owner  on  any  kind 
of  water  has  presumptively  the  right  to  such  uses  in  the  shores 
and  bed  of  the  stream  as  are  compatible  with  the  public  rights,  if 
any  exist,  or  with  private  rights  connected  with  the  same  waters. 
In  rivers  the  theoretical  line  of  ownership  is  in  the  middle  thread 
or  line  of  the  stream,  unless  changed  by  islands  or  some  other 
cause  of  deflection.  If  the  stream  is  crooked,  the  curves  must  be 
adjusted  so  as  to  save  all  the  rights  of  the  different  owners.  But 
lakes  have  no  thread;  and  while  there  is  usually  no  difiiculty  in 
fixing  equitable  bounds  near  the  shore,  it  cannot  be  done  by  any 
mathematical  process  over  any  considerable  extent  of  the  lake,  and 
if — which  does  not  often  happen — there  is  any  occasion  for  mak- 
ing partition  of  the  surface,  it  caTi  only  be  reached  by  some  meas- 
ure of  proportion,  requiring  judicial  or  similar  ascertainment,  and 
not  by  running  lines  from  the  shore.  Small  and  entirely  private 
lakes  are  sometimes  divided  up  for  such  purposes  as  require  sepa- 
rate use.  But  for  uses  like  boating  and  similar  surface  privilefres, 
the  enjoyment  is  almost  universally  held  to  be  in  common.  This 
was  held  by  the  House  of  Lords  in  Minzies  v.  21acdonald,  36  Eng. 
L.  &  Eq.  20.  It  was  there  held  that,  for  all  purposes  of  boating 
and  fishing,  the  whole  lake  was  open  to  every  riparian  owner, 

'Woolrych,  Waters,  p.  129. 


522  IMPOSED  DUTIES,  PERSONAL.  [Part  11. 

while,  as  to  such  fishing  as  required  the  use  of  the  shore,  each  was 
confined  to  liis  own  land,  for  drawing  seines  ashore,  and  the  like 
uses.  In  streams  purely  private  the  enjoyment  of  rights  in  the 
bed  of  the  stream  is  very  important,  as  dams  and  other  permanent 
erections  may  be  necessary  to  get  the  value  of  their  use,  and  it  may 
sometimes  be  desirable  to  fence  or  close  portions  of  them  for  shut- 
ting out  or  shutting  in  what  needs  such  management. 

Every  benefit  which  can  be  drawn  from  the  use  of  private  wa- 
ters belongs  to  the  private  owners,  and  no  one  but  the  owner  has 
any  right  to  go  upon  or  use  them  for  any  purpose  whatever,  with- 
out license  from  the  owner.  It  is  as  much  a  wrong  against  the 
owner  to  touch  his  stream  as  to  touch  his  land,  without  his  consent. 

But  where  waters  are  public  there  is  no  part  of  the  open  water 
from  which  the  riparian  owner  can  exclude  the  public,  and,  while 
he  may  make  such  erections  and  appropriations  near  the  shore  as 
will  not  interfere  with  the  public  convenience,  he  cannot  prevent 
the  public  from  using  any  part  of  the  water  not  so  shut  off.  So 
long  as  the  water  is  open,  the  riparian  owner's  rights  in  the  bed 
away  from  the  shore  are  purely  theoretical  and  valueless.  He  can 
■do  nothing  to  impair  navigation  or  any  of  its  incidents.  And,  as 
explained  in  Lincoln  v.  Davis^  53  Mich.  375,  in  our  great  lakes  it 
would  be  impossible  to  ascertain  any  theoretical  rights  very  far  out 
from  the  shore.  Upon  the  whole  space  of  navigable  surface  a  ripa- 
rian owner  has  for  most  purposes  no  better  rights  than  anyone  else. 

A  difiiculty  has,  however,  been  suggested,  arising  out  of  the 
partially  public  character  given  to  certain  streams  for  floatage  pur- 
poses; and  it  has  been  very  sensibly  urged  that  in  those  streams  it 
has  always  been  understood  that  the  beneficial  and  sole  use  for  all 
purposes  but  floatage  belonged  to  the  riparian  owners.  And  it  is 
■claimed  that  the  rules  as  to  the  use  of  small  as  well  as  great  streams 
must,  in  order  to  produce  uniformity,  either  extend  the  rights  of 
•owners  in  the  large  waters  or  destroy  the  valuable  ownership  in 
the  small  ones. 

The  difficulty,  however,  is  more  apparent  than  real.  As  already 
suggested,  in  this  country  navigable  and  public  streams  mean  the 
same  thing.  No  stream  or  water  can  come  within  that  category 
that  is  not  a  public  waterway  for  general  purposes  of  transporta- 
tion by  some  sort  of  boats  or  vessels.     All  of  our  great  lakes  and 


'Chap.  XXIII. ]    DISTINCTION  BETWEEN  RIVERS  AND  STRKxVMS.         523 

their  connecting  waters  have  been  declared,  as  well  as  used,  as  pub- 
lic navigable  waters,  and  are  such  in  their  entirety.  There  was  a 
time  wlieu  most  of  the  inland  rivers  of  the  northwest  territor}', 
even  though  shallow  and  interrupted  by  rapids,  were  mediums  of 
travel  and  transportation  of  great  value,  in  the  absence  of  land 
highways  and  vehicles,  although  the  boats  used  were  canoes  and 
batteaux  which  no  one  would  now  think  of  using  for  any  such 
purpose.  While  so  used  they  were  treated  as  naviga])le  and  valu- 
able public  highways,  and  are  so  declared  by  the  Ordinance  of 
1787.  But  when  such  streams  have  become  unfitted  for  valuable 
public  use,  and  have  actually  ceased  to  be  used  for  public  high- 
ways, there  is  no  more  reason  for  holding  them  to  be  public  than- 
a  land  highway  that  has  been  abandoned  and  has  become  useless. 
Such  has  been  the  universal  understanding,  and  no  waters  are 
regarded  as  public  or  navigable  waters  that  are  not  capable  of 
general  use,  and  so  aj^propriated  in  some  part  at  least  of  their 
■course.  Instances  are  found  in  the  common-law  authorities  of 
abandoned  waters  that  once  were  held  navigable.  There  are  many 
■streams  in  this  country  which  were  once  public  ways  that  now  are, 
■tmd  long  have  been,  appropriated  entirely  to  private  uses,  and 
could  not  be  made  valuable  for  any  other. 

The  distinction  is  obvious  between  streams  which  are  highways 
and  publicly  enjoyed  as  such,  and  streams  which,  if  cajjable  of 
bearing  any  class  of  boats  or  water-craft,  are  not  serviceable  for 
any  general  convenience  or  utility  in  that  way.  Highways  by 
land  always  rest  on  a  supposed  public  convenience  bordering  on 
actual,  as  it  is  professedly  based  on  legal,  necessity.  Streams  ex- 
ist before  population,  and  may  serve  useful  though  limited  pur- 
poses when  no  other  facilities  exist,  as  trails  and  natural  roads  are 
used  for  lack  of  roads  laid  out  and  improved.  When  no  lono-er 
serving  that  office,  no  one  would  regard  them  as  public  ways. 

A  somewhat  similar  difference  is  recognized  between  navigation 
and  floatage.  While  language  is  sometimes  carelessly  misapplied, 
no  one  can  seriously  confound  streams  which  are  or  may  be  used 
for  general  purposes  of  passage  and  transportation,  with  those  that 
furnish  more  or  less  means  of  floating  down  the  current  logs  and 
similar  articles  which  carry  nothing,  and  are  not  carried  or  pro 
polled,  but  go  as  the  current  takes  them,  and  are  only  kept  from 


524  IMPOSED  DUTIES,  PERSONAL.  [Part  !!► 

jams  or  stranding  by  constant  attention.  It  was  held  in  Moore  v. 
Sanhorne,  2  Mich.  519,  that  streams  capable  of  furnishing  such 
floatage  and  running,  where  it  was  necessary  to  get  logs  moved,, 
were  to  be  regarded  as  subject  to  that  burden,  and  that  decision, 
which  is  in  harmony  with  decisions  in  other  lumbering  regions 
has  been  followed.  But  while  such  uses  have  been  recognized,  it 
has  not  been  considered  that  it  made  of  streams  not  suited  to  other 
purposes  either  navigable  waters  or  public  streams.  Those  uses 
are  peculiar  and  to  some  extent  anomalous.  They  are  entirely  in- 
consistent with  anything  like  general  public  purposes,  and  very  few 
logging  streams  are  available  steadily,  or  without  more  or  less  flood- 
ing. During  parts  of  the  year  the  streams  are  entirely  idle  and 
useless  for  any  transportation.  There  is  language  used  in  that 
case,  as  well  as  in  some  others,  which  cannot  be  safely  applied  be- 
yond the  occasion  and  its  analogies,  and  experience  has  shown  that 
very  great  abuses  have  grown  up  under  some  of  the  rules  appa- 
rently laid  down,  but  not  involved  in  the  issue,  which  render  it 
doubtful  whether  the  court  was  not  seriously  misled  into  announc- 
ing doctrines  much  too  broadly.  But  the  decisions  made  since, 
while  recognizing  the  authority  of  the  precedent,  have  never  con- 
founded log-driving  with  navigation,  or  logging  streams  with  pub- 
lic waters.  The  practice,  so  far  as  it  is  legal  at  all,  is  one  arising 
out  of  a  supposed  necessity,  and  cannot  be  enlarged.  So  far  as  it 
follows  the  analogies  of  ways,  it  has  little  resemblance  to  the  use- 
of  highways  except  as  to  respecting  mutual  rights,  and,  from  the 
litigation,  it  would  seem  that  private  rights  are  not  very  religiously 
respected  in  the  use  of  these  streams.  The  case  of  Grand  Rapids 
Booming  Co.  v.  Jarvis,  30  Mich.  308,  illustrates  forcibly  some  of 
the  difficulties  of  the  subject,  and  the  abuses  which  have  grown 
up  under  it,  even  in  actually  navigable  streams.  The  existence  of 
a  distinction  between  public  rights  of  floatage  and  navigation  is 
somewhat  referred  to  in  Middleton  v.  Flat  River  Booming  Co.^, 
27  Mich.  533,  where  it  was  distinctly  held  that  rights  of  floatage- 
were  not  superior  to  the  rights  of  mill  owners.  The  whole  doc- 
trine that  submits  purely  private  waters  to  easements  in  favor  of 
floating  logs  is  one  which  can  only  be  justified  by  that  particular 
necessity,  and  cannot  go  beyond  it.  Such  limited  and  special  use 
is  not  consistent  with  the  waters  being  public.    It  is  not  a  doctjine 


Chap.  XXIII.]    DISTINCTION  BETWEEN  RIVERS  AND  STREAMS.         525 

that  ought  to  be  enlarged,  and,  as  an  original  question,  it  is  not 
very  clearly  sound. 

In  considering  the  respective  rights  claimed  to  exist  in  Stei'ling 
V.  .Jackson,  supra,  the  court  had  nothing  to  do  with  questions  which 
iirise  in  private  waters.  In  Harsh  v.  Col/ji/,  39  Mich.  620,  the  lake 
was  entirely  owned  by  adjacent  proprietors,  and  the  real  controversj' 
was  whether  each  of  them  had  common  rights  of  boating  and  an- 
gling all  over  the  lake,  or  whether  each  must  keep  witliin  specified 
limits.  This  question  was  not  passed  upon,  because  tlie  court  rec- 
ognized the  general  usage  of  fishing,  where  not  forbidden,  in  such 
waters,  and  held  it  was  no  trespass. 

In  the  former  case,  assuming  all  that  was  claimed  as  to  owner- 
ship of  the  bottom  of  the  lake  or  bay,  there  is  no  ground  for  claim- 
ing the  place  of  the  occurrence  is  not  open  to  the  public  —  and 
therefore  to  the  defendant  —  for  all  the  incidents  of  boating  and 
navigation.  And  this  being  so,  it  is  insisted  by  Campbell,  -/,  there 
IS  not  any  rule  of  law  which  deprived  defendant  of  the  right  of 
taking  or  killing  there  any  wild  creature  of  air  or  water. 

We  cannot  in  this  country  treat  the  Game  Laws  of  England  as 
any  part  of  our  inheritance.  It  has  not  been  done  anywhere. 
And  it  is  especially  true  where  care  was  taken  at  an  eai-ly  stage 
of  the  territorial  existence  to  expressly  abrogate  the  operation  of 
any  English  statutes.  Even  the  English  common  law  has  always 
been  considered  as  applicable  in  this  country  only  to  the  extent 
that  it  has  not  been  modified  by  our  usages  or  necessities.  It 
should  not  be  forgotten  that  the  usages  in  the  Northwest  on  pul)lic 
waters,  especially  as  to  shooting  and  fishing,  existed  under  the 
French  customs  for  nearly  a  century,  and  it  would  hardly  be  con- 
sistent with  free  institutions  to  subject  the  inhabitants  to  any  less  lib- 
eral usages  than  those  which  were  not  only  tolei'ated,  but  favored, 
under  a  very  despotic  government. 

The  common  law  which  we  inherit  is  the  common  law  untainted 
by  feudalism  or  royal  prerogative.  And  if  we  eliminate  these  ele- 
ments and  their  statutory  modifications,  the  question  presents  no 
difficulties. 

Even  in  the  case  of  Blades  v.  Tli<j(js,  13  C.  B.  X.  S.  S66,  which, 
after  all,  was  decided  on  the  strength  of  a  previous  Exchequer 
Chamber  decision  that  had  not  been  supposed  to  go  so  far,  that 


526  IMPOSED  DUTIES,  PERSONAL.  [Part  II.. 

game  killed  on  a  man's  land  by  a  trespasser  belonged  to  the  land 
owner,  it  was  not  pretended  that  this  was  not  a  long  step  forward, 
even  under  the  Game  Laws,  and  not  sustainable  except  as  a  piece- 
of  new  judicial  legislation.  It  has  not  yet  been  carried  far  enough 
to  make  the  property  so  complete  that  larceny  will  lie  for  the  bird 
or  animal  killed  and  taken,  and  this,  of  itself,  condemns  the  doc- 
trine. But  in  that  case  it  was  practically  admitted  that  the  origi- 
nal common  law  did  not  vary  from  the  civil  law,  and  was  conclu- 
sive against  any  ownership  but  that  of  the  captor.  According  to- 
all  the  elementary  common-law  writers,  no  one  had  any  interest 
whatever  in  any  wild  creature  of  the  earth,  air  or  water  until  he- 
had  taken  it  into  his  own  keeping,  alive  or  dead,  and  then  only  so- 
long  as  it  did  not  escape  from  his  custody.' 

It  is  also  common-law  doctrine,  never  changed  until  by  the  rul- 
ings of  Blades  v.  Higgs,  supra,  that  game  started  in  one  man's 
soil  and  killed  in  another  belongs  to  the  hunter, — as  was  the  civil- 
law  rule  also."  And  even  in  a  case  of  lawful  park  or  warren,  it 
was  lawful  for  anyone  to  take  animals  escaped  from  their  inclos- 
ure.'  And  animals  not  included  under  the  designation  of  the 
Game  Laws  belong  in  any  case  to  the  first  taker.* 

Blackstone's  notion  that  the  property  of  animals  ferca  naturae 
was  in  the  Crown  has  no  foundation  in  authority,  and  is  roughly 
handled  by  his  annotators.  In  Tomlins'  Law  Dictionary,  Game 
Laios,  Serjeant  Tomlins  repeats  twice,  and  emphatically,  that  the 
Game  Laws  are  a  system  of  positive  regulations,  introduced  and 
confirmed  by  statute.*  Tomlins  also  indicates  that,  while  these 
laws  are  in  some  quarters  regarded  as  desirable,  there  is  a  very 
strong  feeling  in  many  quarters  that  they  are  cruel  and  unreason- 
able, and  he  refers  to  a  criticism  from  the  bench  in  1  Term  Re- 
ports, 49,  where  they  are  declared  to  be  an  oppressive  remnant  of 
the  ancient  arbitrary  Forest  Laws,  under  which,  in  darker  ages,  the 

•Bac.  Abr.  Game;  Finch,  Com.  Law,  p.  45;  Wood,  Inst.  367;  Tomlins,  Law 

Diet.  Ferce  Naturce,  Game  Laics;  Doctor  and  Student,  chap.  5;  1  Hale,  P. 

C  511;  Fost.  Cr.  L.  366;  3  Inst.  199,  233  a;  Co.  Litt.   122;  Com.  Dig. 

Biens,  F;  11  Coke,  87  b;  2  RoUe,  812,  p.  25;  3  Inst.  109;  Fitzh.  K  B.  86; 

Mallocke  v.  Eadly,  3  Lev.  227. 
^Sutton  V.  Moody,  1  Ld.  Raym.  251;  Ersk.  Inst,  108;  Mackenzie,  Roman  L. 

168,  189. 
8  Wood,  Inst.  314;  Churchward  v.  Studdy,  14  East,  249. 
^Schulte,  Aquatic  Rights,  8. 
6  And  see  Christian's  note  to  2  Bl.  Com.  416,  and  4  Bl.  175. 


Chap.  XXIII.]    DISTINCTION  BETWEEN  EIVERS  AXD  STREAMS.         527 

killing  one  of  the  King's  deer  was  equally  penal  with  murdering 
one  of  his  subjects.  The  doctrine  quite  often  laid  down  by  learned 
writers,  that  they  were  passed  to  prevent  common  people  from 
wasting  their  time  in  vain  amusements,  is  not  one  which  would 
meet  much  favor  in  this  country,  where  a  gun  has  always  been  as 
much  an  every-day  implement  of  farmers  and  people  of  all  sorts 
as  any  other  article. 

It  is  one  of  the  popular  privileges  secured  by  the  charters  that 
no  more  land  should  be  put  into  forests.  It  is  also  settled  that  no 
one  can  create  a  warren  (which  means  a  place  privileged  for  keep- 
ing certain  wild  animals  and  fowls)  except  by  the  King's  grant  or 
prescription.' 

And  the  recognized  reason  of  this  is  that  it  is  a  monopoly  of 
animals  which  belong  to  the  people  at  large,  and  within  the  laws 
against  monopoly.  And  while  the  courts  in  some  cases  have  given 
the  privileges  of  a  warren  extent  enough  to  include  several  classes 
of  wildfowl  not  in  the  old  list,  including  waterfowl,  the  better 
doctrine  is  that  the  list  cannot  be  enlarged  from  the  original 
classes  except  by  the  statute." 

It  was  held  in  Duke  of  Devonshire  v.  Lodge,  7  Barn.  &  C.  36^ 
that  the  list  could  not  be  so  enlarged,  and  that  therefore  no  tres- 
pass was  committed  against  rights  of  warren  in  killing  grouse. 
The  cases  of  Ccu'rington  v.  Taylor,  11  East,  571,  and  Keeble  v^ 
Hiclieringill,  Id.  574,  were  cases  where  a  man  was  charged  with 
willfully  disturbing  a  decoy,  which  was  lawfully  owned  by  the 
plaintiff.  The  former  case  is  not  reasoned  out,  but  is  based  on  the 
latter,  which  held  expressly  that  the  grievance  was  not  in  shooting 
wildfowl — for  that  was  lawful, —  but  for  shooting  for  the  mere 
purpose  of  disturbing  the  decoy  pond.  And  the  decision  was  put 
on  the  ground  that  a  willful  and  malicious  disturbance  of  another's 
business  or  occupation  of  any  kind,  whereby  it  is  interrupted,  is 
actionable.  The  latter  case  has  some  foundation  of  reason.  The 
former  is  not  well  reasoned,  and  can  only  be  supported  on  the 
ground  that  the  appellate  court  in  banc  could  not  weigh  the  testi- 
mony. Both  cases  hold  it  lawful  to  shoot  wildfowl,  except  against 
Parliament  and  any  restrictions  which  do  not  seem  to  apply  to- 

'  1  Coke,  Inst.  233;  Case  of  the  Monopolies,  11  Coke,  87. 
*  See  Tomlins,  Law  Diet.  Warren,  and  references. 


528  IMPOSED   DUTIES,  PERSONAL.  [Fart  II. 

particular  places.  It  is  worthy  of  remark  that  in  Hannam  v. 
Mockett,  2  Barn.  &  C.  934,  it  was  held  not  actionable  to  disturb  a 
rookerj.  Some  of  the  judges  intimated  that  rooks  were  not  v^alu- 
able,  but  the  case  was  chiefly  made  to  turn  on  the  better  reason 
that  it  was  not  shown  that  there  was  a  presumption  or  lixed  right 
to  maintain  it.  If  the  Pickwick  Papers  had  been  published,  per- 
liaps  some  of  the  bench  would  have  been  better  informed  concern- 
ing the  character  of  the  rook,  which  is  known  among  naturalists 
as  frugivorous.  And  it  is  understood  that  an  estate  is  made  valu- 
able in  the  market  wiiich  has  a  rookery.' 

It  is  not  strange  that  courts  should  differ  in  their  construction 
and  application  of  the  Game  Laws.  No  one  has  yet  held  them  to 
be  in  afhrmance  of  the  common  law,  but  some  judges  have  evi- 
dently regarded  them  as  of  great  value  in  furthering  the  landed 
interests,  and  have  stretched  them  beyond  reason,  while  others 
have  more  correctly  treated  them  as  entitled  to  no  expansion.  But, 
with  few  exceptions,  they  have  not  favored  holding  acts  to  be  ac- 
tionable trespasses  Avhere  there  was  no  substantial  injury.  Cowell, 
in  his  definition  of  a  park  and  its  incidents,  says  that  "  the  owner 
cannot  have  an  action  against  such  as  hunt  in  his  park  if  it  lie 
open."  There  are  very  few  precedents  of  actions  for  fowling  or 
angling,  excej)t  under  the  statutes,  and  it  has  generally  been  held 
that  these  actions  will  not  lie  unless  the  place  of  the  trespass  was 
inclosed.*  The  cases  have  not  been  uniform  on  the  question 
whether  it  is  a  trespass  to  shoot  from  a  highwa}^  and  kill  game  on 
private  land.  In  Mayhew  v.  Wardley,  14  C.  B.  N.  S.  548,  it  was 
held  to  be  a  trespass,  but  in  Kernjon  v.  Hart^  6  Best  &  S.  2 19,  this 
doctrine  was  disapproved,  and  shooting  from  the  highway  at  a 
bird  in  the  air  and  killing  it,  and  picking  it  up  in  a  private  close, 
was  held  not  within  the  law.  There  is  one  case  where  a  person, 
standing  in  the  highway,  and  sending  his  dog  inside  of  the  fence 
after  game,  was  held  to  have  entered  the  land,  and,  among  other 
things,  the  highway  was  said  to  be  part  of  the  estate.  In  Chuixh- 
ward  V.  Studdy^  14  East,  249,  however,  it  was  held  that  where  A 
started  a  hare  on  B's  ground  and  captured  it  on  C's  ground,  he 
had  an  action  against  C  for  seizing  it. 

'  Essex,  Rookery. 

^Wickes  V.  Clutterbuck,  2  Bing.  483;  Rex  v.  Daman,  3  Barn.  &  Aid.  378. 


Chap.  XXIIL]    DISTINCTION  BETWEEN  RIVERS  AND  STREAMS.  520 

It  would  be  useless  to  try  to  reconcile  all  of  the  English  decis- 
ions. The  M'hole  law  is  more  or  less  tinged  with  the  policy  of  the 
squirearchy.  But  this  gives  special  importance  to  the  silence  of 
the  law  as  to  angling  or  fowling  on  public  waters.  The  fen  coun- 
tries of  England  are  famous,  and  the  only  way  to  reach  waterfowl 
is  by  the  use  of  boats.  There  is  no  reported  case  where  it  has 
been  held  actionable  to  shoot  or  angle  from  a  boat  in  any  class  of 
public  streams.  There  is  no  case  that  has  been  found  holding  that 
a  person  may  not  kill  birds  or  beasts  actually  in  tlie  highway.  If 
such  conduct  were  regarded  as  illegal,  it  is  very  strange  that,  in 
the  great  multitude  of  prosecutions,  nothing  of  this  sort  has  been 
brought  forward. 

The  American  cases  do  not  favor  any  doctrine  which  would  re- 
strict rights  on  public  waters,  and  these  uniform  usages  in  our  own 
waters  we  are  bound  to  respect.  There  is  no  difference  in  prin- 
ciple or  authority  between  fish  and  fowl.  The  English  statutes, 
and  such  American  statutes  as  we  have,  must  necessarily  differ  in 
the  nature  of  their  regulations;  but  the  questions  of  locality  and 
ownership  must  be  analogous.  It  was  declared  by  the  majority 
opinion  in  Lincoln  v.  Davis^  53  Mich.  875,  that  angling  from  a 
boat  in  navigable  streams  is  lawful.  There  was  never  any  prin- 
ciple or  practice  which  confined  rights  of  travel  on  highwaj-s  by 
land  or  by  water  to  commercial  purposes.  Boats  and  vehicles  are 
as  lawfully  used  for  pleasure  and  recreation  as  for  an}-  other  pur- 
poses. Both  in  England  and  in  the  United  States  the  fislieries 
are  always  brought  under  the  Navigation  Laws.  In  all  pursuit  of 
-animals,  the  vehicle  must  conform  to  the  occasion,  and  boats  are 
as  commonly  used  for  fowling  as  for  fishing,  and  small  boats  are 
oftener  used  for  one  or  the  other  than  for  business.  If  a  person 
Avho  has  a  right  to  be  where  he  is  cannot  lawfully  take  there  what 
any  of  the  public  owns  when  captured,  and  not  before,  the  reason 
is  beyond  the  common  understanding.  It  is  no  concern  of  the 
borderer  on  a  highway  what  any  other  person  does  upon  it,  if  he 
neither  encroaches  on  the  soil  nor  is  guilty  of  a  public  or  private 
nuisance.  Even  a  riparian  proprietor  does  not  own  the  water 
which  flows  over  his  land.  His  soil,  if  he  has  any,  is  M-liere  no 
boat  can  injure  it. 

It  is  of  some  significance  that  Legislatures  have  attempted  to 
34 


530  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

regulate  both  sporting  and  fishing,  and  have  made  provision,  by 
money  and  by  other  means,  for  propagating  fish.  It  is  at  least 
questionable  whether  this  can  lawfully  be  done  in  aid  of  interests 
which  are  all  private. 

In  rivers  navigable  at  common  law  the  fishery  is  common  to  all 
citizens  of  the  State,  under  such  restraints  as  the  law  may  impose. 
In  rivers  not  navigable  at  common  law,  the  fishery,  according  ta 
the  weight  of  authority,  whether  sustainable  on  principle  or  not^ 
belongs  to  the  owners  of  the  soil  adjoining  to  and  under  the  river^ 
for  the  owner  of  the  land  is  owner  to  the  thread  of  the  river, 
usque  ad  filum  mediutn  aquoB.^  As  the  common-law  test  of  the 
ebb  and  flow  of  the  tide,  for  the  navigability  of  rivers,  is  not  gen- 
erally accepted  in  this  country,  although  recognized  in  Massachu- 
setts, Connecticut  and  as  to  some  rivers  in  New  York,  as  to  some 
of  which  the  civil-law  rule  prevails,  the  jurisdiction  over  them 
having  been  acquired  from  the  government  of  the  IS'etherlands,'' 
the  rule  of  fishery  must  follow  the  classification  of  navigable  wa- 
ters in  the  various  States,  not  including,  however,  in  that  term,  so 
far  as  the  right  of  public  fishery  is  involved,  such  streams  as  are 
only  suitable  for  logging.* 

Section  67.— Regulation  of  Fisheries  hy  Statute. 

The  recognition  of  the  title  of  the  riparian  owner  to  the  thread 
of  the  stream  seems,  by  the  weight  of  authority,  though  perhaps 
not  according  to  the  clearest  principle,  to  involve  his  right  to  con- 
trol the  fishery.  But  fisheries,  even  in  waters  not  navigable,  are 
so  far  public  rights  that  the  Legislature  of  the  State  may  ordain 
and  establish  regulations  to  prevent  the  interruption  of  the 
passage  of  fish,  and  promote  the  usual  and  uninterrupted   en- 

'  Hale,  De  Jure  Maris,  p.  6,  citing  Baker  v.  Henry,  temp.  Edw.  I. ;  Owen  v. 
Dunchvide,  Pr.  2  Jac.  I.  B.  R.  See  also  authorities  previously  cited  to 
this  point,  and  Hargr.  Law  Tracts,  6,  7,  8;  Davies,  Rep.  152;  People  v. 
Piatt,  17  Johns.  209;  Adams  v.  Pease,  2  Conn.  481;  Carter  v.  Murcot,  4 
Burr.  2162;  Com.  v.  Chapin,  5  Pick.  199. 

^Smith  V.  Boclmter,  93  N.  Y.  463,  481. 

^Com.  V.  Charlestoion,  1  Pick.  186,  note  1;  3  Kent,  Com.  410;  Ingraham  v. 
Wilkinson,  4  Pick.  273,  notes  1,  2;  Com.  v.  Chopin,  5  Pick.  199;  People 
V.  Canal  Appraisers,  13  Wend.  355;  Beii'y  v.  Carle,  3  Greenl.  269;  Spring 
V.  Russell,  7  Greenl.  273;  Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178; 
Ca^tello  V.  Landwehr,  28  Wis.  522;  Steamboat  Globe  v.  Kurtz,  4  G.  Greene, 
433;  Scott  V.  Chicago,  1  Biss.  510;  TAe  Vancouver,  2  Sawy.  481. 


Chap.   XXIII.]     REGULATION   OF    FISHERIES    BY    STATUTE.  531 

joyment  of  the  riglit  of  the  riparian  owners.'  The  taking  of 
fish  with  nets  in  specified  waters  may  be  prohibited  by  the  Legis- 
latnre  and  the  setting  of  nets  for  that  purpose  dechired  to  be  a 
pubhc  nuisance."  The  question  of  title  of  the  riparian  owner  has 
been  already  examined."  The  right  of  passage  and  of  transporta- 
tion upon  rivers  not  strictly  navigable  belongs  to  the  public,  by 
the  principles  of  the  common  law;  but  the  right  of  fishery  accord- 
ing to  the  current  of  decisions  remains  unrestricted,  so  that  each 
proprietor  of  the  land  adjoining,  where  his  title  is  recognized  in 
the  bed  of  the  river,  has  a  several  or  exclusive  right  of  fishing, 
with  such  nets  and  methods  as  he  sees  proper  to  use,*  immediately 
before  his  land,  down  to  the  middle  of  the  river,  and  may  prevent 
all  others  from  participating  in  it,  and  he  will  have  a  right  of  ac- 
tion against  any  who  shall  usurp  the  exercise  of  it  without  his  con- 
sent.^ But  this  individual  right  must  not  be  exercised  so  as  to 
invade  the  equal  right  of  other  riparian  proprietors  to  take  fish." 
There  must  be  no  physical  hindrance  placed  to  the  free  passage  of 
the  fish  up  and  down  the  stream,"  and  especially  must  there  be  no 
obstruction  to  their  entrance  into  the  lakes  or  ponds  where  they 


^Holyoke  Water  Power  Go.  v.  Lyman,  82  U.  S.  15  Wall.  500,  21  L.  ed.  133. 

See  Com.  v.  Manchester  (Mass.  Sept.  18,  1890)  9  L.  R.  A.  236;  McGlain  v. 

TilUon,  82  :\re.  281;  Clarke  v.  Providence,  16  R.  I. ,  1  L.  R.  A.  725; 

State  V.  Smith.  61  Vt.  346 ;  Clinton  v.  Bacon,  56  Conn.  508 ;  White  v.  Patty,  57 

Conn.  576;  United  States  v.  Nickcrson,  58  U.  S.  17  How.  204,  15  L.  ed. 

219. 

^Latcton  v.  Steele,  119  N.  Y.  226,  7  L.  R.  A.  134. 

^Ante,  pp.  402-417. 

*State  V.  SkolfieU,  63  Me.  266. 

^Com.  V.  Cluirlestown,  1  Pick.  186,  note  1;  3  Kent,  Com.  410:  TngraJiam  v. 
Wilkinson,  4  Pick.  273.  notes  1,  2;  Com.  v.  Chapin,  5  Pick.  199;  People 
V.  Canal  Appraisers,  13  Wend.  355;  Berry  v.  Carle,  3  Qreenl.  2ti9;  Spring 
V.  Russell,  7  Greenl.  273;  Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  178; 
Castello  V.  Landwehr,  28  Wis.  522;  Steamboat  Globe  v.  Kurtz,  4  G.  Greene, 
433;  SaAi  v.  Chicago,  1  Biss.  510;  The  Vancouver,  2  Sawy.  481. 

^Pitkin  V.  Olmstead,  1  Root,  217 ;  Com.  v.  Buggies,  10  Mass.  391 ;  Boaticright 
V.  Bookman,  Rice,L.  447,  451;  Jackson  v.  Lewis,  Cheves,  L.  259;  Com. 
V.  Chapin,  5  Pick.  199. 

"'Hamilton  v.  Donegall,  3  Ridgway,  267;  Bwld  v.  Sipp,  13  N.  J.  L.  348;  Leern- 
field  V.  Lonsdale,  L.  R.  5  C.  P.  657;  Hayden  v.  Noyes,  5  Conn.  391;  State 
V.  Franklin  Falls  Co.  49  N.  H.  240;  People  v.  Reed,  47  Barb.  235;  Barden 
V.  Crocker,  10  Pick.  383;  Cottrill  v.  My  rick,  12  Me.  222;  Shrunk  v.  Schuyl- 
kill JSav.  Go.  14  Serg.  &  R.  11;  JVorth  Yai'mouth  v.  Skillings,  45  Me.  133; 
Eubanks  v.  Pence,  5  Litt.  (Ky.)  338;  State  v.  Skolfield,  63  Me.  266. 


632  IMPOSED   DUTIES,  PERSONAL.  [Part   II. 

bj  instinct  prepare  for  the  multiplication  of  the  species/  This 
restriction  rests  upon  that  universal  principle  at  the  base  of  all  just 
laws,  and  proper  exercise  of  rights,  sic  utere  tuo  ut  alienuin  non 
Icedas."^  In  England,  where  the  powers  of  the  Legislature  are  un- 
fettered bj  a  written  Constitution,  and  no  Act  of  a  prior  Parlia- 
ment can  abridge  the  power  of  a  subsequent  one,  there  could  be 
no  doubt  of  the  authority  to  pass  a  statute  requiring  the  owner  of 
any  dam  to  erect  and  maintain  such  fishways  as  commissioners  ap- 
pointed for  the  purpose  might  prescribe.^  There  was  early  legis- 
lation to  this  effect.  By  Prov.  Stat.,  8  Ann.,  chap.  3,  all  persons 
were  prohibited  from  placing  across  rivers  or  streams  any  fixed 
implements  or  machine  by  which  the  free  passage  of  fish  may  be 
obstructed,  and  by  Prov.  Stat.,  15  Geo.  II.,  chap.  6,  it  is  required 
of  those  v.'ho  build  dams  across  streams  or  rivers,  to  keep  open, 
during  a  certain  period,  sluiceways  or  passages  for  the  fish  to  pass 
through.  No  prescriptive  right  to  bar  the  passage  of  fish  can  be 
acquired,*  and  it  is  an  indictable  offense,"  and  is  punishable  by 
statute.*  Provisions  have  been  adopted  in  many  States  requiring 
the  passage  of  fish  to  their  spawning  places  to  be  unobstructed. 

In  Vinton  v.  Welsh,  9  Pick,  87,  it  was  held,  as  regards  the  plain- 
tiff's charter,  that  "  the  Legislature  without  doubt  meant  to  give 
the  same  right  in  the  dam  to  be  erected  which  proprietors  of  other 
dams  have — that  is,  to  maintain  them  subject  only  to  the  inconve- 
nience of  keeping  open  a  passage  for  fish  during  a  small  portion  of 
the  year.'"  Anything  which  substantially  and  materially  interferes 
with  the  passage  of  fish  up  and  down  stream  is  prohibited  by  the 
Illinois  Act  of  1885.* 

^Stoughton  v.  Baker,  4  Mass.  522;  Com.  v.  Tiffany,  119  Mass.  300;  Com.  v. 

Vincent,  108  Mass.  44(>;  Holyoke  Water  Power  Co.  v.  Lyman,  82  U.  S.  15 

Wall.  500,  21  L.  ed.  183;  Hooker  v,  Gummings,  20  Johns.  90;  Bristol  v. 

Ousatonic  Water  Co.  42  Conn.  403. 
^Warren  v.  Matthews,  1  Salk.  357;  Weld  v.  Hornby,  7  East,  195. 
3  1  Bl.  Com.  90,  160,  161;  Hodgdon  v.  Little,  14  0.  B.  N.  S.  Ill,  16  C.  B.  N, 

S.  198;  Rolle  v.  Whyte,  L.  R.  3  Q.  B.  286,  306. 
*8tate  V.  Franklin  Falls  Co.  49  N.  H.  240. 
^Cottrill  V.  Myrick,  12  Me.  222. 
^Gom.  V.  Tiffany,  119  Mass.  300;  North  Yarmouth  v.  Skillings,  45  Me.  143; 

People  V.  Canal  Appraisers,  33  N.  Y.  461. 
'See  also  Randolph  v.  Brainiree,  4  Mass.  316;  French  v.  Braintree  Mfg.  Co. 

23  Pick.  216;  White  v.  South  Shore  R.  Co.  6  Cush.  412;  Boston  &  R.  Mill- 

Dam  Corp.  v.  Newman,  12  Pick.  467;  Hazen  v.  Esse.v  Co.  12  Cush.  478; 

Com.  V.  Essex  Co.  13  Gray,  249;  Talbot  v,  Hudson,  16  Gray,  417,  426. 
^Summers  v.  People,  29  111.  App.  170. 


Chap.  XXIII.]       DESTRUCTION    OF   NETS    ILLEGALLY    USED.  533 

After  a  manufacturing  corporation,  chartered  with  authority  to 
construct  and  maintain  a  dam  across  a  river,  paying  damages  to 
the  owners  of  fishing  rights  above,  whose  charter  does  not  ex- 
pressly exempt  it  from  maintaining  the  dam  without  a  fisliway, 
and  is  subject  to  amendment,  alteration  or  repeal  at  the  pleasure 
of  the  Legislature,  has  paid  such  damages,  and  constructed  the 
dam  without  a  fishway,  so  as  to  destroy  the  fishing  rights  above, 
and  to  impair  fishing  rights  below,  for  the  injury  to  which  last  no 
compensation  has  ever  been  made  or  provided,  that  corporation, 
or  any  other  which  purchases  its  dam  under  the  authority  of  a  sub- 
sequent statute,  may  be  constitutionally  required  by  the  Legislature 
to  construct  a  fishway  in  the  dam  to  the  satisfaction  of  commis- 
sioners appointed  for  the  purpose.' 

Section  Q^.— Destruction  of  JVets  Illegally  Used. 

The  State  possesses  ample  authority  to  rid  the  fisheries  of  such 
devices  as  are  destructive  of  them  without  negotiations  with  or  ju- 
dicial proceedings  against  the  offending  owners  who  have  con- 
structed or  placed  such  devices  in  the  fisheries  in  violation  of  the 
law  protecting  the  same.''  The  inquiry  in  Lawton  v.  Steele,  119 
N.  Y.  226,  7  L.  E.  A.  134,  was  whether  the  destruction  of  the  nets 
set  in  violation  of  law,  authorized  and  required  by  the  Act  of  1883, 
is  simply  a  proper,  reasonable  and  necessary  regulation  for  the 
abatement  of  the  nuisance,  or  transcends  that  purpose,  and  is  to 
be  regarded  as  the  imposition  and  infliction  of  a  forfeiture  of  the 
owner's  right  of  property  in  the  nets,  in  the  nature  of  a  punish- 
ment. It  was  admitted  as  very  near  the  border  line,  but  the  legis- 
lation was  sustained  on  the  ground  that  the  destruction  of  nets  so 
placed  is  a  reasonable  incident  of  the  power  of  the  abatement  of 
the  nuisance.  The  owner  of  the  nets  is  deprived  of  his  property, 
not  as  the  direct  object  of  the  law,  but  as  incident  to  the  abate- 
ment of  the  nuisance. 

Where  a  private  person  is  authorized  to  abate  a  public  nui- 
sance, as  in  case  of  a  house  built  in  a  highway,  or  a  gate  across 

^Inland  Fi.^heries  Comrs.  v.  Holyoke  Water  P.  Co.  104  ]\Iass.  446. 

^Phelps  V.  Rncey,  60  N.  Y.  10,  approved  in  State  v.  Snover,  42  N.  J.  L.  345, 

and  Marjner  v.   People.  97  111.  332;  Williams  y.  Blackwall,  2  Ilurl.  &  C. 

33;  Smith  v.  Leviaus,  8  N.  Y.  472. 


534  IMPOSED  DUTIES,  PERSONAL.  [Pari  II. 

it,  wliich  obstructs  and  prevents  his  passa^^e  thereon,  it  was 
long  ago  held  that  he  was  not  required  to  observe  particular 
care  in  abating  the  nuisance,  and  that  although  the  gate  might 
have  been  opened  without  cutting  it  down,  yet  the  cutting 
down  would  be  lawful.'  But  the  general  rule  undoubtedly  is 
that  the  abatement  must  be  limited  by  necessity,  and  no  wanton 
and  unnecessary  injury  must  be  committed/  It  is  conceivable 
that  nets  illegally  set  could,  with  the  use  of  care,  be  removed  with- 
out destroying  them.  But,  in  view  of  their  position,  the  difficulty 
attending  their  removal,  the  liability  to  injury  in  the  process  and 
their  comparatively  small  value,  the  court  ruled  that  the  Legislature 
could  adjudge  their  destruction  as  a  reasonable  means  of  abating 
the  nuisance. 

The  case  of  State  v,  Snover,  42  N".  J.  L.  341,  tends  to  sustain 
the  conclusion  reached  in  Lawton  v.  Steele^  supra.  The  action  in 
that  case  was  trespass,  for  entering  the  plaintiffs  lands,  bordering 
a  non-navigable  stream  in  Xew  Jersey,  and  destroying  a  fish  basket, 
in  the  waters  diverted  therefrom,  placed  for  the  catching  of  fish, 
contrary  to  a  statute.    The  court  held  the  statute  to  be  a  justification. 

The  case  of  Williams  v.  Blaokwall,  2  Hurl.  &  C.  33,  arose 
under  an  Act  of  Parliament  which  authorized  the  summary  de- 
struction, by  fish  wardens,  of  what  were  known  as  salmon  engines, 
beinsr  fish  nets  set  in  violation  of  the  Act.  The  case  is  not 'an  au- 
thority  upon  the  power  of  our  Legislatures  under  the  limitations 
of  the  State  Constitutions,  but  the  legislation  upon  which  the  ac- 
tion was  founded  shows  that,  in  a  country  governed  by  the  prin- 
ciples of  Magna  Charta,  such  legislation  is  not  deemed  inconsistent 
with  the  fundamental  doctrines  of  civil  liberty. 

For  the  protection  of  the  fish,  and  for  the  maintenance  of  equal- 
ity in  respect  to  the  right  to  fish,  the  State  may  regulate  fisheries, 
if  the  regulations  are  reasonable,  and  do  not  extend  beyond  the 
prevention  of  threatened  injuries.^     The  taking  of  fish  with  nets 

^Lodie  V.  Arnold,  2  Salk.  458,  and  cases  cited. 

»3  Bl.  Com.  p.  6,  note. 

3  See  Holyoke  Wate)-  Power  Co.  v.  Lipnnn,  82  U.  S.  15  Wall.  500,  31  L.  ed. 
133;  Com.  v.  Chapin,  5  Pick.  199;  Com.  v.  Essex  Co.  13  Gray,  247;  StMte 
V.  Snover,  42  N.  J.  L.  341;  Doughty  v.  Conover,  Id.  193.  In  the  last  case 
the  Statute  under  consideration  prohibited  tlie  use  of  fish  nets  at  certain 
times  of  the  year  in  particular  counties.  See  also  Inland  Fisheries  Comrs. 
V.  Holyoke  'Water  Power  Co.  104  Mass.  446,  6  Am.  Rep.  247. 


Chap.  XXIII.]       DESTRUCTION    OF    NETS    ILLEGALLY    USED.  535 

in  specified  waters  may  be  prohibited  by  the  Legishitnre,  and  tlie 
^letting  of  nets  for  that  purpose  declared  to  be  a  public  nuisance.' 
Under  Me.  Laws  1SS5,  chap.  2G1,  prohil>iting  the  taking  of  men- 
haden with  purse  or  drag  seines  in  any  bay  "  where  any  entrance 
to  the  same,  or  any  part  thereof,  from  land  to  land,  is  not  more 
than  3  nautical  miles  in  width,"  where  a  bay  extending  more  than 
S  miles  from  headland  to  headland  contains  islands  making  differ- 
ent entrances,  the  width  of  the  entrance  is  tlie  statute  test,  not 
the  length  of  the  front  between  headlands."  Me.  Rev.  Stat.,  chap. 
40,  §  70,  pi'ohibiting  the  use  of  a  net,  other  than  a  dip-net,  in  fresh 
water,  applies  to  the  Grand  Fond  in  Kennebec  County,  Maine.' 
The  spreading  of  nets  by  vessels  from  the  lake,  three  miles  up  the 
Orand  River  from  its  mouth,  is  a  violation  of  Mich.  Laws  1885, 
Act  'No.  10.*  A  law  forbidding  the  catching  of  fish  by  seines, 
nets  or  traps,  in  the  waters  of  the  State,  interferes  with  no  consti- 
tutional right.*  Korth  Carolina  Acts  1875,  chap,  115,  §  183,  does 
not  preclude  one  engaged  in  a  seine-fishery  from  removing  stakes 
put  to  operate  a  pond-net.'  Under  the  proviso  to  Tenn.  Acts 
1879,  chap.  198,  making  the  penalties  prescribed  inapplicable  "  to 
persons  owning  private  ponds,  and  to  those  owning  the  land  on 
both  sides  of  a  running  stream,  the  same  being  closed  by  a  sub- 
stantial fence,"  one  who  catches  fish  with  a  net  in  such  a  stream 
by  verbal  permission  from  the  owner  of  the  land,  although  in  his 
absence,  commits  no  violation  of  the  law.''  Vt.  Act  18S2,  Xo. 
117,  §  2,  prohibiting  all  net  fishing  in  Lake  Champlain,orin  rivers 
emptying  into  the  lake  within  ten  miles  from  the  mouth,  is  held 
constitutional  as  a  regulation,  and  not  prohibiting  the  fishing.* 

Yt.  Acts  1882,  Xo.  117,  §  1,  does  not  limit  the  jurisdiction  of 
fish  wardens  to  the  town  in  which  they  were  appointed,  but  they 
have  authority  to  make  an  arrest  for  the  violation  of  Fish  Laws  in 
any  town  throughout  the  State.*     A  provision  in  a  statute  for  the 

^Lawton  v.  Steele.  119  N.  Y.  246,  7  L.  R.  A.  134. 

^MoClain  v.  TilUon,  83  Me.  281. 

^State  V.  Towle,  80  Me.  349,  6  New  Eng.  Rep.  644. 

^People  V.  KirscJi,  67  Mich.  ■'539,  13  West.  Rep.  63. 

''Slate  V.  B'Munt,  85  Mo.  543. 

^llettrick  v.  Page,  83  N.  C.  65. 

''Maney  v.  State,  6  Lea,  218.  -      - 

^Drew  V.  IlUliker,  56  Vt.  641. 

^Sheets  v.  Atherton  (Vt.  April  12,  1890)  19  Atl.  Rep.  926. 


536  IMPOSED    DUTIES,  PERSONAL.  [Part    II. 

arrest  by  a  fish  warden  of  "  persons  found  violating  "  the  Fish  Laws 
authorizes  such  arrest  without  a  warrant/  The  Statute  providing- 
that  the  fish  warden,  on  finding  a  person  violating  the  Fish  Laws^ 
may  arrest  and  prosecute  such  offender  before  the  proper  tribunal, 
is  fairly  complied  with  when  he  delivers  the  offender  over  to  the 
proper  prosecuting  officer  of  the  place  where  the  offense  was  com- 
mitted.* A  fish  warden  who,  upon  arriving  on  fishing  ground, 
finds  barrels  of  fish  recently  taken  from  the  waters,  has  authority 
to  arrest  one  who  was  at  that  time  assisting  in  taking  one  of  the 
seines  out  of  the  water,  and  who  made  hostile  threats  of  violence 
to  the  officer,  those  facts  being  sufficient  evidence  that  such  per- 
son was  violating  the  law.'  The  fact  that  a  fish  warden  did  not 
make  an  arrest  for  a  violation  of  the  Fish  Law  before  seizing  the 
nets  will  not  render  the  arrest  unlawful,  where  he  made  it  as  ex- 
peditiously as  could  reasonably  be  done  under  the  circumstances.* 
An  arrest  will  be  deemed  to  have  been  made  from  the  time  and 
place  when  the  pursuit  began,  where  such  pursuit  was  continuous 
until  the  arrest  was  made.^ 

The  penalty  for  fishing  without  a  license,  in  a  fishery  district 
subject  to  a  board  of  conservators,  can  only  be  recovered  by  the 
board  of  conservators  and  a  duly  appointed  water-bailiff  in  the  em- 
ployment of  the  board  entitled  to  institute  the  proceedings.* 

Section  69. — Oyster  Fisheries. 

There  exists  a  public  right  to  take  shell-fish  along  the  shore  be- 
low high-water  mark  and  under  the  Colonial  Ordinance  within  one 
hundred  yards  of  the  upland,  until  the  flats  are  inclosed  by  the 
proprietor.''  And  if  there  is  a  right  to  go  upon  the  flats  and  to 
disturb  the  soil  for  clams,  a  fortiori  there  is  a  right  to  pass  over 
them  for  fishing.*  Oj'sters  planted  in  tidal  and  public  waters  re- 
main the  property  of  the  person  so  planting  them,  and  their  con- 

12  3  4  f>sheets  V.  Atlierton  (Vt.  April  13,  1890)  19  Atl.  Kep.  926. 

^Anderson  v.  Hamlin,  L.  R.  25  Q.  B.  Div.  221. 

''Weston  v.  Sampson,  8  Gush.  347;  Dunliam  v.  Lamphere,  3  Gray,  268,  271  j 

Lakeman  v.  Burnham,  7  Gray,  437;  Com.  v.  Roxbury,  9  Gray,  526,  527; 

Com.  V.  Bailey,  13  Allen,  541;  Proctor  v.  Wells,   103  Mass.  216;  Com.  v. 

Manimon,  136  Mass.  456,  458. 
^Packard  v,  Ryder,  144  Mass.  440,  4  New  Eng.  Rep.  246. 


Chap.  XXI II.]  OYSTER  FISHERIES.  537 

version  by  another  furnishes  a  cause  of  action  to  the  owner.'  A 
violation  of  the  law  in  planting  an  oyster  bed  does  not  forfeit  one's 
right  to  it,  or  bestow  any  right  upon  another  party  to  its  confisca- 
tion or  appropriation.^  Proof  that  defendant's  rakes  were  over- 
board at  the  time  he  sailed  over  another's  oyster  bed  is  sufficient 
to  sustain  a  conviction  under  N.  Y.  Pen.  Code,  §  640,  subd.  8,  pro- 
viding for  the  interfering  with  or  disturbing  the  oysters  of  an- 
other.' 

A  natural,  as  distinguished  from  an  artificial,  oyster  bed,  is  one 
not  planted  by  man,  and  in  any  shoal,  reef  or  bottom  where  oys- 
ters are  to  be  found  growing,  not  sparsely  or  at  intervals,  but  in  a 
mass  or  stratum,  and  in  sufficient  quantities  to  be  valuable  to  the 
public*  To  constitute  a  private  oyster,  clam,  etc.,  bed,  the  oysters 
must  have  been  planted  by  those  from  whom  the  claimant  derives 
the  right  to  take  them,  and  the  place  where  they  were  planted 
must  have  been  in  a  bed  clearly  marked  out  and  defined,  and 
where  there  were  no  oysters  growing  spontaneously  at  the  time.' 
N.  Y.  Laws  1870,  chap.  234,  §  1,  providing  that  no  person  shall 
catch  or  take  any  oysters,  clams,  mussels  or  shells  in  the  water  of 
South  Bay  in  Suffolk  County  with  a  dredge  or  drag,  does  not  ap- 
ply to  persons  taking  their  own  oysters  out  of  their  private  lots  or 
beds  in  the  waters  of  the  bay." 

Under  N.  Y.  Pen.  Code,  §  441,  making  it  a  misdemeanor  for  a 
person  who  is  not  an  actual  inhabitant  and*  resident  of  the  State  to 
plant  oysters  v;ithout  the  consent  of  the  owner,  planting  by  a  non- 
resident without  the  owner's  consent  constitutes  the  offense;  and 
the  question  as  to  intent  to  violate  the  law  is  immaterial.^  A 
finding  of  a  committee  appointed  pursuant  to  the  Connecticut  Act 
of  1881  (Conn.  Sess.  Laws,  p.  1C4,  §  12),  to  locate,  etc.,  all  natural 
oyster-beds,  is  res  judicata  against  a  person  claiming  no  private 
i-ight,  but  such  only  as  he  has  in  common  with  the  rest  of  the 
public* 

^Sutter  V.  Van  Derveer,  47  Hun,  366;  Fleet  v.  Eegeman,  14  Wend.  42. 

'^Sutter  y.Vaa  Derveer,  47  Hun,  366. 

''People  V.  Decker  (Sup.  Ct.  July  18,  1890)  33  N.  Y.  S.  R.  956. 

*State  V.  Willis,  104  N.  C.  764,  106  N.  C.  804. 

» <^People  V.  Hcaen,  121  N.  Y.  313. 

"> People  V.  Loicndes,  53  Hun,  469. 

^Wliite  V.  Pe/.ty,  57  Conn.  576. 


538  IMPOSED    DUTIES,  PERSONAL.  [Pai't    II. 

Section  10.— Injury  to  Fishery  hy  Negligent 
Navigation. 

But  the  right  of  fishing  in  navigable  waters,  as  the  term  is  un- 
derstood in  a  broad  sense,  not  including,  however,  streams  only  fit 
at  times  for  logging,  is  limited  by  the  superior  right  of  navigation, 
but  only  so  far  as  the  fishing  interferes  with  the  fail',  useful  and 
legitimate  exercise  of  that  right,'  The  rights  of  navigation  and 
■commerce  are  always  paramount  to  those  of  public  fisheries.*  The 
master  of  a  vessel  is  not  obliged  in  such  waters  to  slacken  his  sail, 
or  change  his  course,  or  yield  the  channel,  to  a  fishing  net.  Yet 
if,  under  the  pretense  of  exercising  this  right,  he  turn  out  of  his 
course  to  run  upon  a  net,  or  if  he  lie  in  wait  till  the  net  be  spread, 
and  then  crowd  sail  to  reach  it,  or  if  he  unnecessarily  anchor  on 
fishing  ground,  or  otherwise  loiter  about  it,  to  prevent  it  being 
used  as  such,  in  all  such  cases,  and  a  hundred  others  of  like 
nature  which  may  be  easily  imagined,  he  will  be  liable  for  dam- 
ages. For  the  right  of  navigation,  though  superior  in  navigable 
waters,  does  not  take  away  the  right  of  fishery.'  Thus  where  the 
master  of  a  vessel  knowingly,  and  without  necessity,  or  for  reason- 
able commercial  purposes,  anchored  his  vessel  within  the  limits  of 
the  plaintiff's  fishery  in  the  Potomac,  so  as  to  interrupt  the  same, 
he  made  himself  liable  for  damages.  And  if,  under  the  same  state 
of  facts,  he  remained  on  such  ground  unnecessarily,  he  became 
liable  for  the  injury  he  caused  to  the  fishery/ 

Negligent  failure  on  the  part  of  one  navigating  public  navigable 
water  to  see  and  avoid  a  fishing  net  set  therein,  when  he  could 
have  done  so  without  detriment  to  the  prosecution  of  his  voyage, 
will  render  him  liable  for  the  injuries  he  occasions  to  the  net. 
Maliciousness  or  wantonness  in  running  upon  the  net  is  not  neces- 
sary to  a  right  of  recovery.  It  is  not  negligence  as  matter  of  law 
for  the  owner  of  a  fishing  net  set  in  a  public  navigable  water,  from 
which  he  is  engaged  in  taking  fish,  to  fail  to  warn  an  apj^roaching 
vessel  of  the  existence  and  situation  of  the  net,  so  as  to  prevent  a 

'Harg.  Law  Tracts,  9-22;  Swift,  341. 

^Stockton  V.  BalUmore  &  N.  Y.  R.  Co.  32  Fed.  Rep.  9,  1  Inters,  Com,  Rep. 

411, 
^Post  V.  Munn,  4  K  J.  L.  61. 
*Mason  v.  Mansfield,  4  Cranch,  C.  C.  580. 


Ohap.  XXIIL]       INJURY   BY    NEGLIGENT    NAVIGATION.  53'.> 

recovery  from  the  owner  of  the  vessel  for  injuries  done  by  its  run- 
ning through  the  net.  Wliethcr  or  not  such  faihire  is  negligence 
is  a  question  for  the  jury.  The  measure  of  damages,  in  an  action 
against  a  ship  owner  to  recover  damages  for  his  running  his  ves- 
sel upon  and  partially  destroying  a  fishing  net,  is  the  cost  of  re- 
pairing the  net  and  the  value  of  the  labor  recpiired  to  reset  it,  to- 
gether with  the  value  of  its  use  during  the  time  it  is  necessarily 
idle;  prospective  profits  which  might  have  been  realized  from  a 
continued  use  of  the  net  cannot  be  allowed  as  damages.' 

In  Post  V.  Munn^  4  N.  J.  L.  61,  and  Cobb  v.  Bennett,  75  Pa. 
326,  it  appeared  that  the  persons  in  charge  of  the  vessels  knew 
the  location  of  the  nets,  and  willfully,  or,  in  other  words,  malic- 
iously and  wantonly,  ran  their  vessels  into  them  unnecessarily.  Of 
course,  the  owners  of  the  vessels  were  held  liable  for  the  damages 
to  the  nets.  Tlie  principle  fairly  deducible  from  these  cases  is,  we 
think,  correctly  stated  in  a  head  note  to  the  Pennsylvania  case,  as 
follows:  "A  vessel  may  hold  her  course  in  a  navigable  stream 
without  regard  to  a  fisherman's  net,  if  the  master  act  without 
wantonness  or  malice,  and  does  no  unnecessary  damage."  How 
-can  it  reasonably  be  said  that  the  master  does  no  unnecessary  dam- 
age if  he  runs  his  vessel  upon  a  net  and  injures  it,  when,  by  the 
-exercise  of  a  little  forethought  and  care,  he  could  have  avoided 
doing  so  without  prejudice  to  the  reasonable  prosecution  of  his 
voyage  ? 

\\\  Wright  v.  Mulvaney  (Wis.  K'ov.  5,  1S90),  9  L.  E.  A.  SOT, 
the  negligent  failure  of  the  defendant  and  those  operating  his 
steam-tug  to  see  the  net  and  avoid  it,  when  it  could  have  been 
avoided  without  detriment  to  the  prosecution  of  the  voyage,  was 
held  a  sufficient  basis  for  a  recovery  in  the  action.  The  proofs 
show  that  the  plaintiffs  were  taking  fish  from  the  pot  when  the 
steam-tug  ran  through  the  net,  but  gave  no  warning,  other  than 
that  given  by  their  presence  there,  to  those  in  charge  of  the  tug, 
that  the  net  lay  across  its  path.  It  was  claimed  that  this  was  con- 
tributory negligence  on  the  part  of  the  plaintiffs,  which  defeats 
the  action.  But  the  court  declined  to  say  as  matter  of  law  that  it 
was  such  negligence,  but  regarded  the  fact  as  a  proper  one  to  be 
.submitted  to  the  jury  on  the  question  of  contributory  negligence, 

'  WrUjU  V.  Mulvaney  (Wis,  Nov.  5,  1890)  9  L.  R.  A.  807, 


540  IMPOSED   DUTIES,  PERSONAL.  [Part    II, 

and  the  judge  so  submitted  it  in  his  charge.  But  where  a  seine 
was  put  in  a  regular  course  of  navigation,  while  a  steamship  was 
approaching,  and  in  such  a  part  of  the  cliannel  that,  if  the  steam- 
ship had  deviated  to  go  round  it,  she  would  have  been  in  danger 
of  grounding,  the  seine  was  an  obstruction  to  navigation,  and  the- 
libel  against  the  ship  for  destroying  the  seine  and  releasing  the 
fish  was  dismissed.' 

Section  11.— Protection  and  Fropagation  of  Fish. 

In  Massachusetts  and  Maine,  even  in  non-navigable  streams,  towns 
have  by  immemorial  use  the  right  to  regulate  the  taking  of  fish.' 

A  city  ordinance  requiring  owners  of  stone  quarries  to  fill  the- 
excavations  up  even  with  the  surface  of  the  ground,  or  to  drain 
the  water  therefrom,  does  not  forbid  an  excavation  made  at  a  re- 
mote period  of  time  to  be  utilized  for  an  ornamental  pond  or  for 
a  fish  or  ice  pond,  fed  and  filled  from  a  living  source  of  pure  water.* 

Provisions  for  the  protection  of  fish  have  been  passed  by  various 
States,  making  it  a  criminal  offense  to  permit  acid,  lime  or  other 
deleterious  substances  to  be  put  in  waters  where  game  fish  live,* 
or  sawdust  or  other  refuse.*  In  other  States  the  time,  place,  man- 
ner and  purpose  of  their  capture  are  fixed,  and  the  planting  and 
gathering  of  oysters,  terrapins,  lobsters,  crabs  and  shrimps  are  regu- 
lated by  law."     Statutes  have  also  been  passed  by  the   United 

^The  City  of  Baltimore,  5  Ben.  474.     See  also   Cobb  v.   Bennett,  75  Pa.  326;. 

Colchester  v.  Brooke,   7  Q.  B.  389;  Flanagan  v.  Philadelphia, A2  Pa.  219, 

228;  Leicis  v  Keeling,  1  Jones,  L.  299;  Moulton  v.  Libbey,  37  Me.  472;. 

Davis  V.  Jenkins,  5  Jones,  L.  290. 
^Com.  V.  Chapin,  5  Pick.  199;  Nickerson  v.  Brackett.  10  Mass.  212;  Preables- 

V.  Hannaford,  18  Me.  lOG;  Spear  v.  Robinson,  29  Me.  531;  Proctor  v.  Wells, 

103  Mass.  216;  Bearce  v.  Fossett,  34  Me,  575;  Eantham  v.  Anderson,  119 

Mass.  526. 
^Rochester  v.  Simpson,  57  Hun,  36. 
'^State  V.  American  Foreite  Powder  Mfg.  Co.  50  N.  J.  L.  75,  9  Cent.  Rep. 

495. 
«Wis.  Stat.  1887,  chap.  490,  p.  545;  Cal.  Stat.  1889,  chap.  65,  p.  61;  Nev. 

Stat.  1889,  chap.  15,  p.  24;  Kan.  Stat.  1889,  chap.  149,  p.  208. 
^Clinton  v.  Buell,  55  Conn.  263,  5  New  Eng.  Rep.  233;  Peojjle  v.  Kirsch,  67 

Mich.  539;  Ga.  Acts  1886-87,  No.  170,  p.  99;  Va.  Act  April  12,  1887; 

Acts  Ex.  L.  Sess.  chap.  209,  p.  285;  Md.  Laws  1888,  chap.  505,  p.  792, 

chap.   513,   p.  807,  chap.  433;  Del.  Laws  1889,  chap.  560,  p.  682,  chap. 

565,  p.  688;  Ala.  Acts  1886-87,  No.  86,  p.   133;   Fla.   Acts  1887,   chap, 

3754,  No.  74,  p.  139,  chap.  3759,  No.  79,  p.  142;  Tenn.  Acts  1887,  chap. 

143,  p.  246;  Col.  Acts  1889,  p.  168;  Cal.  Acts  1889,  chap.  65,  p.  61;  Neb. 

Stat.  1887.  chap.  107,  p.  662;  111.  Laws  1889,  p.  103;  Pa.  Laws  1889,  No. 


■Chap.  XXIII.]    STATUTES  FOR  THE  PRESERVATIOX  OF  GAME.  54:1 

States.*  Fish  coininissions  liave  general!}'  also  been  establishod 
for  the  pro]>ag-ation  and  protection  of  fish."  and  this  protection  has 
been  extended  to  waters  not  navigable.' 

Section  "J^.— Statutes  for  the  Preservation  of  Game. 

Statutes  in  ahnost  every  State  in  the  Union  may  be  found  en- 
acted for  the  preservation  of  game.  The  text-writers,  in  treating 
of  the  power  to  legislate  on  this  subject,  place  it  under  the  police 
power  inherent  in  each  State.  Tiedeman  *  says:  "  It  is  a  very  com- 
mon pohce  regulation,  to  be  found  in  every  State,  to  prohiljit  the 
hunting  and  killing  of  birds  and  other  wild  animals  in  certain  sea- 
sons of  the  year,  the  object  of  the  regulation  being  the  preserva- 
tion of  these  animals  from  complete  extermination,  by  providing 
for  them  a  period  of  rest  and  safety,  in  which  they  may  procreate 

242,  p.  267:  Tex.  Gen.  Laws  1887,  chap.  34,  p.  24,  chap.  Ill,  p.  103; 
Vt.  Stat.  1884,  No.  73,  p.  888,  No.  128,  p.  135;  Utah  Laws  1888,  chap. 
37,  p.  78;  Wyo.  Laws  1888,  chap.  54,  p.  97;  N.  H.  Laws  1889,  chap.  85, 
p.  100;  N.  Y.  Laws  1871,  chap.  6b9,  1879,  chap.  384;  Ahrams  v.  John- 
son, 45  Hun,  591;  Mass.  Pub.  Stat.  chap.  91.  i:^  27;  Acts  1888.  chap.  331, 
p.  267,  1889,  chap.  108.  p.  66,  chap.  497,  p.  188;  Com.  v.  Richardson,  142 
Mass.  71,2  New  Eng.  Rep.  153;  State  v.  Turnbnll,  78  Me.  392,  3  New 
Eng.  Rep.  45;  Thompson  v.  Smith,  79  Me.  160,  4  New  Encr.  Rep.  140; 
State  V.  Bennett,  79  Me.  55,  3  New  Eng.  Rep.  616;  State  v.  Trefethen  (Me. 
Feb.  7, 1887)  3  New  Eng.  Rep.  842;  Me.  Pub.  Laws  1889,  chap.  292,  p.  258; 
State  V.  Adams,  78  Me.  486,  3  New  Eng.  Rep.  243;  Me.  Laws  1887,  chap.  96, 
p.  660;  Com.  v.  Barber,  143  Mass.  560. 3  New  Eng.  Rep.  901 ;  State  v.  Or i fin, 
89  Mo.  49,  4  West.  Rep.  639;  Packardv.  Ryder,  144  Mass.  440,  4  New  Eng. 
Rep.  245;  Post  v.  Kreischer,  103  N.  Y.  110,  4  Cent.  Rep.  219;  N.  Y.  Laws 
1887,  chap.  530,  p.  663,  chap.  584,  p.  797,  1888,  chap.  526,  p.  818,  chap. 
491,  p.  783;  State  v.  Burdick,  15  R.  I.  239, 1  New  Eng.  Rep.  870;  Clinton  v. 
Buell,  55  Conn.  263,  5  New  Eng.  Rep.  233;  Abrams  v.  Hempstead  Auditors, 
45  Hun,  272;  Sutter  v.  VanDerveer,  47  Hun,  366;  Com.  v.  Eliot,  146  Mass. 
5,  5  New  Eng.  Rep.  541;  Purcell  v.  Conrad,  84  Va.  557;  Hurst  v.  Dulanrj, 
84  Va.  701;  Ohio  Gen.  Laws  1888,  p.  157;  State  v.  Towle,  80  lAIe.  349,  6 
New  Eng.  Rep.  460;  State  v.  Craig,  80  Me.  85,  6  New  Eng.  Rep.  160; 
Jones  V.  State,  08  Md.  613;  Ind.  Laws  1889,  chap.  239,  p.  449;  Wis.  Acts 
1889,  chap.  13.  pp.  371,  443,  465,  486;  Ark.  Acts  1889,  ciiap.  689,  p.  84;  New 
Mex.  Acts  18S9,  chap.  53,  p.  109;  Idaho  Gen.  Laws  1889,  p.  50;  Mont. 
Laws  1889,  No.  9;  ReaY.  Hampton,  101  N.  C.  51;  People  v.  Hazen,  .53 
Hun.  370;  Latcton  v.  Steele,  119  N.  Y.  220,  7  L.  R.  A.  134;  Kane  v.  State, 
70  Md.  546;  Morgan  v.  Naqodish,  40  La.  Ann.  246;  Hurst  v.  Dulany,  84 
Va.  701;  Clarke  v.  Providence.  16  R.  I.  — . 

*24  U.  S.  Stat,  at  L.  chap.  288,  p.  434;  Act  March  2,  1889. 

-«0r.  Laws  1887,  p.  37;  Minn.  Gen.  Laws  1887,  chap.  143,  p.  241;  25  U.  S. 
Stat,  at  L.  chap.  1,  p.  1;  N.  J.  Laws  1889,  chap.  175;  Md.  Laws  1888, 
chap.  497,  p.  783;  R.  I.  Pub.  Laws  1889,  chap.  765,  p.  68;  Mont.  Laws 
1889,  No.  3. 

^Weller  v.  Snover,  42  N.  J.  L.  341;  Haney  v.  Compton,  30  N.  J.  L.  507. 

''Lim.  Pol.  Powers,  §  122/,  chap.  10,  p.  140. 


542  IMPOSED  DUTIES,  PERSONAL.  [Part  IT. 

and  rear  their  young.  The  animals  are  those  which  are  adapted 
to  consumption  as  food,  and  their  preservation  is  a  matter  of  pub- 
lic interest.  The  constitutionality  of  such  legislation  cannot  be 
questioned." 

In  Phelps  V.  Hacey,  60  N.  Y.  10,  the  power  of  the  State  to- 
legislate  for  the  preservation  of  game  was  called  in  question,  and 
in  deciding  the  case  the  court  said:  "  The  protection  and  preser- 
vation of  game  has  been  secured  by  law  in  all  civilized  countries, 
and  may  be  justified  on  many  grounds,  one  of  which  is  for  pur- 
poses of  food."  "  The  means  best  adapted  to  this  end  are  for  the 
Legislature  to  determine,  and  courts  cannot  review  its  discretion. 
If  the  regulations  operate  in  any  respect  unjustly  or  oppressively,, 
the  proper  remedy  must  be  applied  by  that  bod3\"  * 

In  Magner  v.  People,  97  111.  333,  the  validity  of  the  Game  Law 
of  1879  was  before  the  court,  and  it  was  then  said:  "  The  owner- 
ship being  in  the  j)eople  of  the  State, — the  repository  of  the  sov- 
ereign authority, —  and  no  individual  having  any  property  righta 
to  be  affected,  it  necessarily  results  that  the  Legislature,  as  the  rep- 
resentative of  the  people  of  the  State,  may  withhold  or  grant  to- 
individuals  the  right  to  hunt  and  kill  game,  or  qualify  and  restrict 
it,  as  in  the  opinion  of  its  members  will  best  subserve  the  public 
welfare." 

The  claim  has  been  made  that  where  quail  have  been  killed  the 
dead  animals  become  property,  and  the  taker  becomes  the  absolute 
owner  of  such  property,  and  that  an  Act  to  prevent  a  sale,  or 
transportation  for  sale,  within  the  State,  would  be  an  interfer- 
ence with  private  right  amounting  to  a  destruction  of  the  right 
of  property  without  due  process  of  law.  The  fallacy  of  the  po- 
sition consists  in  the  supposition  that  the  person  who  may  kill 
quail  has  an  absolute  property  in  the  dead  animals.  In  the  Mag- 
ner Case,  supra,  it  was  held  that  no  one  had  a  property  in  animals 
and  fowls  denominated  "  game."  The  ownership  was  in  the  peo- 
ple of  the  State.  This  being  so,  it  necessarily  follows  that  th& 
Legislature  had  the  right  to  permit  persons  to  kill  or  take  game 
upon  such  terms  and  conditions  as  its  wisdom  might  dictate,  and 
that  the  person  killing  game  might  have  such  property  interest  in 
it,  and  such  only,  as  the  Legislature  might  confer.  The  Legis- 
1  See  also  Allen  v.  Wyckoff,  48  N.  J.  L.  93,  2  Ceat.  Rep.  213. 


Chap.  XXIir.]    STATUTES  FOR  THE  PRESERVATION  OF  GAME.  545 

lature  in  tlie  State  has  never  conferred  an  absolute  property  in 
quail  upon  the  person  wlio  nii<i;lit  kill  the  same.'  The  killing  of 
quail  during  the  months  of  October  and  ^S^oveniber  was  permitted, 
not  for  sale,  not  to  go  upon  the  market  as  an  article  of  commerce, 
but  for  the  mere  use  of  the  person  who  killed  the  birds.  The 
person  killing  quail  under  this  Statute  has  but  a  qualified  property 
in  the  birds  after  they  are  killed.  He  may  consume  them.  If  a 
trespasser  should  take  them  from  him,  he  might  maintain  an  ap- 
propriate action  to  regain  the  possession.  But  the  law  which  au- 
thorized him  to  kill  the  quail  has  withheld  the  right  to  sell,  or  the 
right  to  slii])  for  the  purpose  of  sale;  and,  when  such  person  un- 
dertakes to  ship  for  sale,  he  is  undertaking  to  assert  a  right  not 
conferred  by  law.  The  Act,  therefore,  does  not  destroy  a  right 
of  property,  because  no  such  right  exists.  Section  2  of  the  Act 
does  not  prohibit  absolutely  the  transportation  of  quail  which  have 
been  killed  in  the  State,  but  only  transportation  by  persons,  cor- 
porations and  carriers  knowing  the  same  to  have  been  sold,  or 
knowing  the}'  were  to  be  sold  or  offered  for  sale.  If  the  Legis- 
lature of  the  State  thought  that  a  statute  preventing  a  citizen  from 
killing  quail  for  sale  in  the  market,  and  imposing  a  penalty  on  a 
common  carrier  for  shipping  or  transporting  for  sale,  would  result 
in  protecting  the  game  in  the  State,  no  valid  reason  exists  why  a. 
statute  of  that  character  might  not  be  enacted.  The  nature  and 
character  of  the  legislation  was  a  matter  resting  solely  with  the 
Legislature;  and  so  long  as  no  constitutional  right  of  the  citizen 
has  been  infringed  upon,  the  Statute  must  be  sustained.' 

'  See  upon  the  privilege  of  hunting  and  property  in  game,  Pierson  v.  Post, 
3  Caines,  175;  Buster  v.  JS^ewkirk,  20  Johns.  75.  See  also  Sutton\.  Mooch/, 
1  Ld.  Ravm.  250;  Lonsdale  v.  Rigq,  11  Exch.  654;  Eiggv.  Lonsdale,  1  Hurl. 
&  N.  933';  Blades  v.  Hi(/gs,  12  C.  B.  N.  S.  501.  13  C.  B.  N.  S.  844,  11  II. 
L.  Cas.  621,  20  C.  B.  N.  S.  214;  Churchward  v.  Studdy,  14  East,  249; 
McConico  v.  Singleton,  2  Treadw.  244;  Broughton  v.  Singleton,  2  Nott  & 
McC.  338;  Paul  v.  Summerhai/es,  L.  R.  4  Q.  B.  Div.  9;  Fripp  v.  Hasell. 
1  Strobh.  L.  173;  Glenn  v.  Kays,  1  111.  App.  479;  Deane  v.  Clayton,  7" 
Taunt.  489;  Gundry  v.  Felt,  1  T.  R.  334,  337;  Schulte,  Aq.  Rights,  8. 

^American  Express  Co.  v.  People,  133  111.  649,  9  L.  R.  A.  138. 


CHAPTER  XXIY. 

USE  OF  RIVERS;  MILL  OWNERS;  BOOM  COMPANIES,  WHARVES. 

See.  73.    Upper  and  Loioer  Mill  Oioners. — Negligence. 
Sec.  74.  Floatage  of  Logs. — Negligence. 

a.  Boom  Companies. — Duties  and  Liabilities. 

b.  Compiensation  for  Driving  Logs. 

c.  Intermingling  and  Confusion  of  Logs. 
Sec.  75.    Wharfage  and  Wharves. 

a.  Unlaivful  Interference  with  Approach  to  Wharf. 

b.  Wharf  Rights. — Public  and  Private  Landings. 

c.  Liability  of  Wharf  Ot07ier  or  Occupier. 

d.  Wharfage  Fees  and  Charges. 

Section  IZ.— Upper  and  Lower  Mill  Owners.— Xei- 

ligence. 

The  law  as  to  surface  streams,  though  peculiar,  has  been  so  fre- 
quently considered  and  so  carefully  and  fully  adjudicated,  that  its 
controlling  principles  are  readily  ascertained.  One  of  its  settled 
maxims  is  '■''Exjure  naturm  aqua  c^i7'rit  et  debet  currere,  utcur- 
7'ere  solebat^''  and  this  is  declared  by  Kent  to  be  the  settled  Ian. 
gnage  of  the  law.*  In  this  the  principal  writers  and  authorities 
concur.^ 

Another  maxim  flowing  from  the  one  above  stated  is  that  the 
owner  of  the  bed  of  a  stream  does  not  own  the  water,  but  only  has 
a  mere  right  to  its  use.  He  has  a  mere  usufruct.  He  cannot  de- 
tain it  so  as  to  deprive  the  owner  below  of  its  use,'  as  one  mill 
owner  on  the  stream  has  the  same  right  as  another  to  its  reasonable 
enjoyment,  unless  one  has  acquired  a  superior  right  by  grant  or 
prescription.  As  between  two  mill  owners,  the  question  some- 
times arises  as  to  the  reasonable  use  or  detention  of  the  water  by 
the  upper  mill.     As  each  riparian  owner  can  only  use  the  water 

'3  Kent,  Com.  (4th  ed.)  439. 

^Tyler  v.  Wilkinson,  4  Mason,  400. 

^WareY.  J.;fe?i,  140  Mass.  513,  1  New  Eng.   Rep.  733;  Mason  v.  Eoyle,  56 

Conn.  255,  6   New  Eng.    Rep.  629;    Caldwell  v.  Sanderson,  69   Wis.    52; 

Whitney  v.  Wheeler  Cotton  Mills,  151  Mass.  396,  7  L.  R.  A.  613;  Smith  v. 

Rochester,  93  N.  Y.  473;  Merritt  v.  Brinkerhoff,  17  Johns.  306. 


Oliap.  XXIV.]       UPPER    AlfD    LOWER   MILL   OWNERS.  54:5 

and  does  not  own  it,  it  follows  that  each  as  against  the  other  must 
use  it  reasonably.  If  he  do  otherwise  and  detain  it  unreasonably 
long  to  the  injury  of  the  owner  below,  an  action  lies.' 

Although  one  who  is  in  ownership  and  possession  of  a  mill  site 
has  acquired,  under  the  Statute  of  Limitations,  a  right  to  use 
the  water  in  the  future,  as  he  has  in  time  past,  notwithstanding 
these  rights,  his  duties  and  liabilities  may  be  greatly  increased  by 
other  persons  erecting  mills  on  the  same  stream,  for  no  priority  of 
occupation  or  use  of  the  water  by  a  mill  owner  upon  a  stream? 
within  the  limits  of  his  own  estate,  affects  the  right  of  a  riparian 
proprietor  above  him  to  erect  and  operate  a  mill  in  a  suitable  man- 
ner on  his  own  land,  unless  the  prior  occupier  has  obtained  by 
prescription  the  riglit  to  use  the  stream  and  back  the  water  on  the 
land  of  the  owner  above  hini.* 

But  the  owner  of  land  lying  upon  both  sides  of  a  natural  stream 
of  water  may  lawfully  erect  a  dam  across  the  stream,  to  such  a 
height  that  in  ordinary  stages  of  the  water  it  will  not  throw  water 
back  upon  the  wheels  of  an  ancient  mill  above,  although  in  conse- 
quence of  the  erection  of  the  dam,  the  ice,  when  it  breaks  up  in 
the  spring,  becomes  packed  together  above  the  dam,  and  the  water 
is  thereby  set  back  so  as  to  flood  the  wheels  to  a  greater  height  and 
for  a  longer  time  than  it  has  done  before  at  that  season.  Although 
he  who  first  erects  his  dam  acquires  by  statute,  in  many  of  the 
States,  a  title  to  the  use  of  the  water  prior  and  superior  to  all  oth- 
ers, and  a  right  to  maintain  his  dam  against  all  proprietors  of  lands 
both  above  and  below  his  own,"  yet  this  right  is  not  so  absolute 
as  to  give  him  the  control  of  the  whole  stream  or  deprive  others 
of  a  reasonable  use.  If  the  dam  does  not  injure  other  riparian 
owners  at  the  ordinary  height  of  the  water,  for  which  the  owner 
of  the  dam  would  be  as  responsible  as  for  overflowing  the  banks,* 

^Woodin  V.  Wentworth,  51  Mich.   278;  Burk  v.   Simonson,  104  Ind.  173,   1 

West.  Rep.  190;  Pixley  v.  Clark,  35  N.  Y.  520. 
'Oibson  V.  Fischer,  68  Iowa,  29;  Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa. 

126,  4  Cent.  Rep.  483. 
^Cary  v.  Daniels,  8  Met.  466;  Van  Bergan  v.  Van  Bergan,  3  Johns.  Ch.  282, 

1  N.  Y.  Ch.  L.  ed.  619. 
*Brown  v.  Boicen,  30  N.  Y.  519;  Russell  v.  Scott,  9  Cow.    279;    Monroe  v. 

Gate,  ^^8  'i>lfi. '^Q'6;  Great  Falls  Co.  v.    Worster,  15  N.   H.   460;    Cotclesv. 

Kidder,    24  N.  H.  364;  Hutchinson  v.  Granger,  13  Vt.  386;  Stout  v.   Mc- 

Adams,  3  111.  67;  Dickson  v.  Burnham,   14  U.  C.  Ch.  594;   Saunders  v. 

Newman,  1  Barn.  &  Aid.  258. 

35 


54:(i  IMPOSED    DUTIES,    PERSONAL.  [Part  II. 

such  owner  is  not  responsible  for  natural  causes  over  which  he  has 
no  control.'     Nor  can  one  owning  a  suitable  place  for  a  mill  site 
be  deprived  of  it  because  someone  else  has  wrongfully  interfered 
witli  the  stream  above  him,  unless  the  interference  has  continued 
for  such  length  of  time  as  to  bar  a  suit  or  indicate  acquiescence.* 
Before  such  erections  are  made,  if  the  owner  injure  no  person 
above  or  below  him,  he  may  raise  the  water  to  any  height  he 
pleases  and  may  suffer  his  dam  to  decay  till  the  water  crushes 
it  and  goes  off  in  a  body ;  but  after  erections  have  been  made  be- 
low on  the  same  stream,  the  owner  cannot  lawfully  raise  his  dam 
above  its  usual  height  so  as  to  lessen  the  flow  of  water  to  the 
erections  below,  nor  suffer  his  dam  to  decay,  break  down  and  let 
off  all  the  water  at  once,  to  the  injury  of  the  lower   proprietor. 
The  owner  is  subject  to  the  maxim,  "  Sic  utere  tuo  ut  alienum 
non  IcedasP     To  comply  wdth  this  requisition  of  the  common  law, 
it  is  the  duty  of  the  owner  to  use  ordinary  care  and  diligence  in 
making  repairs  to  his  dam,  or  in  drawing  off  the  water  from  his 
pond,  to  prevent  injury  to  the  low^er  proprietor.     If  he  does  not 
use  this  care  and  diligence  he  is  guilty  of  negligence,  and  liable 
for  consequential  damages,  although  he  is  not  responsible  for  in- 
evitable accident.'    Thus,  where  defendant  could,  by  the  opening 
of  the  floodgates  of  his  dam,  have  avoided  the  injury  caused  by 
accumulated  mud,  etc.,  raising  the  water  so  as  to  interfere  with 
the  working  capacity  of  plaintiff's  mill  above,  he  is  liable  for  such 
damages,  on  refusal  to  open  the  gates  and  let  the  mud  pass,  al- 
though the  accumulation  of  the  mud  was  caused  by  the  removal 
of  a  dam  by  the  plaintiff  to  make  an  improvement.*    A  common- 
law  action  will  lie  for  damages  resulting  from  the  negligent  or 
improper  construction  or  maintenance  of  a  dam  jfnd  reservoir,  con- 
structed under  the  provisions  of  a  statute  which  authorizes  the 
dam  upon  payment  of  the  damages  resulting  from  the  proper  ex- 
ercise of  the  authority  given,  and  which  provides  that  such  dam- 
ages are  to  be  recovered  by  petition  filed  for  the  purpose.^ 

^Monongahela  Nav.  Co.  v.   Coon,  6  Pa.  383;  Smith  v.  Agawam  Canal  Co.  2 

Allen,  355;  China  v.  Southwick,  12  Me.  238. 
^Koopman  v.  Blodgett,  70  Mich.  610,  14  West.  Rep.  909. 
^Lapham  v.  Curtis,  5  Vt.  371. 
*Hardin  v.  Ledbetter,  103  N.  0.  90. 
^Aldworih  v.  Lynn  (Mass.  Jan.  9,  1891)  10  L.  R.  A.  210. 


Chap.  XXIV.]       UPPER    AND    LOWER   MILL    OWNERS.  547 

It  is  only  when  the  flow  of  water  on  one  person's  land  is  iden- 
tified with  that  on  his  neighbor's  by  being  traceable  to  it  along  a 
distinct  and  defined  course  that  the  two  proprietors  can  have  nat- 
ural relations  with  each  other  in  respect  to  it,  considered  as  the 
subject  of  separate  existence.*  But  owners  of  lots  in  the  neigh- 
borhood, but  not  upon  the  line,  of  a  watercourse,  although  having 
no  interest  in  the  original  bed  and  no  rights  over  it  as  riparian 
owners,  have  a  right  to  insist  that  it  shall  not  be  forced  upon  them, 
and  to  treat  the  act  of  him  by  whom  it  is  so  foi'ced  as  a  trespass." 

When  two  mill  owners  whose  mills  are  on  the  same  stream,  one 
below  the  other,  have  a  mutual  interest  in  the  upper  dam,  used  as 
a  reservoir  for  storing  water  to  propel  the  machinery  of  both 
mills,  they  are,  in  the  absence  of  any  contract,  under  a  mutual 
duty  to  maintain  the  dam  ;  and  a  court  of  equity  will  compel  each 
to  contribute  to  its  maintenance  in  proportion  to  his  relative  inter- 
est, so  long  as  he  exercises  his  right  to  the  water.' 

The  owner  or  occupant  of  a  water-power  may  lawfully  pass 
through  his  dam  the  entire  volume  of  water  naturally  flowing  in 
the  stream,  but  must  not  increase  such  volume  to  the  injury  of 
adjoining  lands;*  and  where  the  stream  is  flowing  from  a  great 
natural  pond  or  lake  he  has  no  right  to  lower  the  outlet  and  draw 
down  the  water  in  the  pond  or  lake  below  its  natural  low-water 
line.' 

A  riparian  proprietor  on  a  natural  stream  should  use  the  water 
so  that  those  below  may  have  the  natural  flow,  subject  to  the  nec- 
essary interruptions,"  and  in  the  absence  of  any  stipulation  or  ac- 
quired right  to  the  contrary,  the  owner  of  an  upper  privilege  may 
make  a  reasonable  use  of  the  water  and  obstruct  and  accumulate 
it  in  a  reasonable  way  for  the  benefit  of  his  own  mill,  whatever 
may  be  the  effect  upon  the  owners  below; '  as  where  he  detained  it 
for  two  days  and  a  night.* 

'  ^Jones  V.  Wciterfihansen,  131  Pa.  63. 

^Webb  V.  Laird,  59  Vt.  108,  3  New  Eng.  Rep.  586. 

*Boyington  v.  Squires,  71  Wis.  276. 

''Fernald  v.  Enox  Woolen  Co.  8a  Me.  48,  7  L.  R.  A.  459. 

'^  Ware  v.  Allen,  140  Mass.  513,  1  New  Eng.   Rep.  732;  Burk  v.  fJimonson, 
104  Ind.  173,  1  West.  Rep.  190. 

''Springfield  v.  ILirri.%  4  Allen,  494;  Robertson  v.  Miller,  40  Conu.  40;  Merri- 
field  V.   Worcexter,  110  Mass.  210,  219. 

»Hoi/t  V.  Sterreit,  2  Watts,  327;  Hartzall  v.  Sill,  13  Pa.  248. 


548  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

But  he  must  not  withhold  or  let  down  the  water  in  an  un- 
reasonable manner;'  and  it  has  been  held  that  any  detention 
of  the  waters  of  a  navigable  stream  for  the  sole  purpose  of 
securing  a  flood,  in  such  a  manner  that  it  prevents  a  lower 
owner  from  running  his  mills,  is  unreasonable  and  unlawful,  and 
entitles  such  owner  to  compensation  for  the  resulting  damages.* 
But  this  strictness  is  hardly  supported  by  the  decisions,  M'liich, 
however,  rule  that  where  an  upper  mill  owner  detains  water  in  his 
reservoir  long  enough  to  operate  his  mill  for  five  hours  in  dry 
seasons,  which  occur  for  three  months  of  the  year,  and  thereby 
causes  lower  mills  to  lie  idle  for  five  days  at  a  time,  such  use  of 
the  water  is  unreasonable  and  should  be  enjoined.^  But  he  has 
the  right  to  stop  the  natural  flow  long  enough  to  fill  up  the  pond 
or  reservoir  created  by  his  dam,  and  keep  it  full  for  the  use  of  his 
mill;  and  will  be  liable  to  the  lower  owner  only  when  the  use  and 
detention  of  the  water  are  unreasonable.* 

Although  an  upper  riparian  proprietor  cannot  be  compelled  to 
hold  back  water  for  the  benefit  of  the  owners  below  him,  yet  he 
cannot  unreasonably  interfere  with  the  natural  flow  of  the  stream, 
and  send  down  a  great  deal  more  than  the  usual  quantity  at  times, 
and  by  so  doing  leave  none  for  a  long  time  afterwards  to  main- 
tain the  stream  in  its  usual  condition.^  So  long  as  his  dam  stands, 
he  must  vent  the  waters  for  mill  owners  below,  so  that  each  shall 
have  the  natural  flow  of  the  stream,  except  so  far  as  the  flow  is 
modified  by  successive  riparian  proprietors.* 

The  rule  must  be  kept  in  mind  that  the  mill  owners  upon  the 
banks  of  a  non-navigable  stream  are  entitled  to  the  practically  un- 
interrupted flow  of  its  water  in  its  accustomed  channel.''  Still  a 
lower  proprietor  may  set  back  the  water  in  its  natural  state  to  the 
boundary  of  the  upper  proprietor,  but  he  cannot  by  a  dam  or  log 

'  Clapj)  V.  Herrick,  129  Mass.  292. 

^  Woodin  V.  Wenticorth,  57  Mich.  278. 

^Mason  v.  Hoi/le,  56  Conn.  255,  6  New  Eng.  Rep.  639. 

*  Caldwell  v.  Sanderson,  69  Wis.  53. 

« Whitney  v.  Wheeler  Cotton  Mills,  151  Mass.  396,  7  L.  R.  A.  613. 

^Stevens  v.  Eelley  (Me.  Jan.  25,  1888)  5  New  Eng.  Rep.  871. 

''Smith  V.  Rochester,  92  N.  Y.  473;  Reid  v.   Gifford,  Hopk.   Ch.  416,  2  N.  Y 

Ch.  L.  ed.  470;  Bi-own  v.  Bowen,  30  N.  Y.  519;  Pixlei/  v.  Clark,  35  N.  Y. 

530;  Varick  v.  Smith,  9  Paige,  137,  3  N.  Y.  Ch.  L.  ed.  659. 


Ciiap.  XXIY.]       FLOATAGE   OF    LOGS. —  NEGLIGENCE.  549 

jams  so  far  set  it  back  as  to  impede  the  running  of  his  mills.' 
Nor  can  an  upper  proprietor,  meroly  because  at  times  the  lower 
proprietor  partially  obstructs  the  operation  of  his  mills,  entirely 
abandon  their  use,  and  claim  damages  therefor,  unless  the  obstruc- 
tion renders  their  operation  impossible  with  profit.'  Nor  does 
the  doctrine  of  contributory  negligence  apply  to  a  case  where 
plaintiff  in  an  action  to  recover  for  a  nuisance  is  shown  to  have 
maintained  another  nuisance.' 

When  two  mill  owners  whose  mills  are  on  the  same  stream,  one 
.  below  the  other,  have  a  mutual  interest  in  an  upper  dam  used  as 
a  reservoir  for  storing  water  to  propel  the  machinery  of  both  mills, 
they  are,  in  the  absence  of  any  contract,  under  a  mutual  duty  to 
maintain  the  dam,  and  a  court  of  equity  will  compel  each  to  con- 
tribute to  its  maintenance  in  proportion  to  his  relative  interest,  so 
long  as  he  exercises  a  right  to  the  water." 

Section  14:.— Floatage  of  Logs.—JfegUgence. 

Each  right  to  the  use  of  flowing  water  for  commercial  purposes 
is  the  offspring  of  advancing  civilization,  and  neither  can  be  exer- 
cised without  in  some  degree  restraining  the  freedom  of  the  oth- 
ers. This  conflict  of  rights  must  therefore  be  reconciled.  The 
common  law  in  its  wonderful  adaptation  to  the  vicissitudes  of  hu- 
man affairs,  and  to  promote  the  comfort  and  convenience  of  man, 
as  conveniences  grow  into  necessities  in  the  progress  of  society, 
furnishes  a  solution  of  this  difficulty  by  allowing  the  owner  of  the 
soil,  over  which  passes  a  floatable  stream  which  is  not  technically 
navigable,  to  build  a  dam  across  it  and  erect  a  mill  thereon,  pro- 
vided he  furnishes  a  convenient  and  suitable  sluice  or  passageway 
for  the  migration  of  fish  and  the  use  of  the  public  by  or  through 
his  erections."  To  the  common-law  remedy  have  been  added  stat- 
utory provisions."     Even  a  grant  to  erect  a  mill-dam  does  not 

•  ^Richards  v.  Peters,  70  Mich.  286,  14  West.  Rep.  628. 

^Randolph  v.  Bloomfield,  77  Iowa,  50. 

*Webb  V.  Lrdrd,  59  Vt.  108,  3  New  Eng.  Rep.  586. 

^SUUe  V.  Franklin  Fulls  Co.  49  N.  H.  240;  Ilimlton  v.  Donegnll,  3  Ridi;. 
t.  Hardw.  2G7;  Leconfield  v.  Lonsdale,  h.  K.  3  C.  P.  657;  Bardeit,  v.  Crock- 
er, 10  Pick.  883. 

^Com.  V.  Tiffany,  119  Mass.  300;  State  v.  Skolfield,  63  Me.  266;  Shaw  v.  Craw- 
ford, 10  Joiins.  236;  Hayden  v.  Noyes,  5  Conn.  397;  Uart  v.  Uill,  1  Wliart. 
132;  Badd  v.  Sip,  13  N.  J.  L.  348;  WcUer  v.  Snover,  42  N.  J.  L.  341;  Eu- 
bank V.  Fence,  5  Litt.  (Ky.)  338. 


550  IMPOSED    DUTIES,    PERSONAL.  [Part  II. 

confer  the  riglit  to  impede  navigation  or  the  floatage  of  logs  on  a 
public  river,'  and  yet  obstructions  by  dams  to  streams  navigable 
only  for  floatage  of  logs  is  not  unlawful  if  the  dams  do  not  ma- 
terially impair  the  value  of  the  stream  for  floating  purposes,  but 
provide  a  convenient  and  suitable  passageway  for  logs."  In  this 
way  both  these  rights  may  be  exercised  without  substantial  preju- 
dice or  inconvenience.  These  views  are  sustained,  not  only  by 
reason,  but  by  the  decided  weight  of  American  aulhorities.^ 

But  mill  owners  who,  at  the  time  of  constructing  dams  on  anon- 
navigable  stream,  which  is,  however,  floatable  for  running  logs  at 
certain  seasons  of  the  year,  have  made  sufficient  sluice-ways  for 
the  passage  of  logs  which  the  stream  will  float  in  its  natural  con- 
dition, cannot  afterwards  be  compelled  to  enlarge  the  capacity  of 
the  sluice  for  floatage  purposes.* 

In  Stration  v.  Currier,  81  Me.  497,  3  L.  R.  A.  809,  the  facts  were 
that  in  188-i  the  defendants  were  the  owners  of  a  mill  and  dam 
across  the  Piscataquis  River,  by  which  they  were  able  to  raise  and 
hold  a  sufiicient  head  of  water  to  operate  their  mill,  on  their  own 
land  at  Abbot.  They  claimed  that  they  had  owned  and  possessed 
their  mill  and  dam,  in  the  same  condition  that  they  were  then  in, 
for  more  than  twenty  years.  And  as  to  ancient  mill  sites,  a  right 
in  fee  is  to  be  presumed  in  the  mill  privileges  from  an  implied  grant, 
and  with  that  the  right  to  have  a  dam  and  the  water  of  the  stream.* 
Such  a  right  of  prescrijDtion  may  be  acquired.*  The  Piscataquis 
River  at  that  point  was  not  navigable  as  a  tidal  river,  but  was 

>Angell,  Watercourses,  §§  254,486,  566,  note 4.;  Enoxv.  Ohaloner,  43  Me.  150. 

^A.  G.  Conn.  Co.  v.  Little  Suamico  Lumber  &  Mfg.  Co.  74  Wis.  653. 

^Brown  v.  Chadbourne,  31  Me.  9,  50  Am.  Dec.  641 ;  Knox  v.  Chaloner,  42  Me. 
150;  Munson  v.  Hungerford,  6  Barb.  268;  Burrows  v.  Oallup,  32  Conn. 
501;  Volk  V.  Eldred,  23  Wis.  410;  Moore  v.  Sanborne,  2  Mich.  523;  Wads- 
worth  V.  S7nit7i,  11  Me.  278,  26  Am.  Dec.  525;  NeaderJiouser  v.  State,  38 
Ind.  270;  Veazie  v.  Dioinel,  50  Me.  479;  People  v.  Piatt,  17  Johns.  195; 
Curtis  V.  Eeesler,  14  Barb.  511;  Hubbard  v.  Bell,  54  111.  112;  Ireat  v.  Lord, 
42  Me.  553;  Walker  v.  ShciMrdson,  4  Wis.  486;  Stuart  v.  Clark,  2  Swan 
(Tenn.)  9;  Weise  v.  Smith,  3  Or.  445;  Felqerv.  Robinson,  Id.  458;  Rhodes 
V.  Otis,  33  Ala.  578;  Com.  v.  Chafin,  5  Pick.  199,  16  Am.  Dec.  386;  Gas 
ion  V.  Mace,  33  W.  Va.  14,  5  L.  K.  A.  392. 
■     *8tratton  v.  Currier,  81  Me.  497,  3L.  R.  A.  809,  and  note. 

^StougMon  v.  Baker,  4  Mass.  523,  538. 

^Nichols  V.  Boston,  98  Mass.  39,  43;  Warren  v.  Spencer  Water  Co.  143  Mass. 
155,  163,  3  New  Eng.  Rep.  502;  Eastern  R.  Co.  v.  Allen,  135  Mass.  13; 
Hittinger  v.  Fames,  131  Mass.  540,  546;  Lddy  v.  Chase,  140  Mass.  471,  1 
New  Eng.  Rep.  573. 


Chap.  XXI Y.]       FLOATAGE   OF    LOGS. —  NEGLIGENCE.  551 

floatable  for  the  running  of  logs  at  certain  seasons  of  the  year. 
The  defendants  claimed  that  when  their  dam  was  constructed  it  was 
provided  with  a  sluice  proper  and  suihcient  for  passing  all  logs 
that  the  river  in  its  natural  state,  and  as  it  then  was,  and  had  been 
down  to  18S4,  could  float.  They  said  that  prior  to  that  time,  by 
reason  of  the  natural  character  of  the  river  above  their  dam,  the 
water  fell  so  rapidly  in  the  running  season  that  compai-atively  but 
a  small  quantity  of  logs  could  be  floated  to  and  over  their  dam. 

The  plaintiffs  do  not  seem  to  have  controverted  these  facts,  but 
claimed,  and  introduced  evidence  to  prove,  that  in  1S83  they  ob- 
tained a  charter  from  the  State  to  build  reservoir  dams  and  oth- 
erwise improve  the  river  above  that  place,  and  that  under  that 
charter  they  had  constructed  two  reservoir  dams  and  otherwise 
improved  the  condition  of  the  river  for  floating  logs  above  Ab- 
bot ;  that  in  the  spring  of  ISSi  they  had  in  the  river  above  Abbot 
4,000,000  logs  which  they  drove  down  the  river  that  season  ;  and 
that  to  enable  them  to  drive  that  quantity  they  had  their  reservoir 
dams  full  of  water,  which  they  used  for  that  purpose.  They 
claimed  that  the  sluice  at  the  defendants'  dam  was  not  of  sufficient 
capacity  to  enable  them  to  run  that  large  quantity  of  logs  over  the 
dam  without  unreasonable  and  unnecessary  delay ;  and  that  for 
that  reason  the  dam  was  a  nuisance  to  them  and  caused  them  great 
damage. 

The  real  question  in  contention  between  the  parties  was,  whether 
the  defendants  were  obliged  to  maintain  a  sluice  over  their  dam 
reasonable  and  proper  for  the  use  of  the  plaintiffs  for  floating  the 
large  quantity  of  logs  which  they  were  able  to  float,  by  the  water 
which  they  had  stored  up  by  their  reservoir  dams,  and  which 
they  would  not  have  been  able  to  float  by  the  natural  and  usual 
condition  of  the  river  before  their  dams  were  constructed;  or 
whether  they  complied  with  the  duty  imposed  upon  them  by 
maintaining  a  sluice  reasonable  and  proper  for  passing  all  the  logs 
which  could  be  run  in  the  river  above  their  mill  by  the  natural 
condition  of  the  water.  Upon  this  point,  the  court  charged  the 
jury,  in  substance,  that  the  defendants  had  a  right  to  construct 
and  maintain  their  dam  upon  their  own  land  for  the  purpose  of 
raising  a  sufficient  head  of  water  to  operate  their  mill;  that  the 
stream  being  of  suflicient  capacity  to  float  lumber,  the  public  and 


552  IMPOSED  DUTIES,  PERSONAL.  [Part  !!► 

the  plaintiffs  had  a  right  to  its  use  for  that  purpose,  and  that  in 
constructing  and  maintaining  their  dam,  the  defendants  were 
bound  to  provide  reasonable  and  proper  means  for  floating  over 
their  dam  the  lumber  which  the  stream  was  capable  of  floating,  in 
its  natural  condition;  that  they  were  not  bound  to  provide,  in 
18S4,  for  the  plaintiffs  a  sluice  of  additional  capacity  to  enable 
them  to  run  the  large  quantity  of  logs  which  they  were  able  to 
float  that  year  by  the  use  of  the  large  quantity  of  Avater  which, 
under  their  charter,  by  artificial  means,  they  had  held  back  and 
stored  for  that  purpose. 

After  the  judge  had  given  the  jury  his  instructions  upon  this 
point,  at  the  request  of  the  counsel  for  the  plaintiffs  he  gave  them 
the  further  instruction  :  "  That  if  the  plaintiffs'  logs  could  have 
been  driven,  with  the  river  in  its  natural  state  at  any  season  of  the 
year,  they  were  entitled  to  a  reasonable  passage  when  by  reason 
of  the  water  stored  they  could  float  their  logs  over  the  defendants' 
dam."     The  instructions  were  held  correct. 

The  plaintiffs'  contention  was  that  if  the  defendants'  dam,  as  it. 
was  constructed  and  had  been  maintained  prior  to  1884,  furnished 
reasonable  and  proper  facilities  for  the  exercise  of  the  public  right 
of  floating  lumber  in  the  natural  condition  of  the  river,  the  action 
of  the  plaintiffs,  under  their  charter,  in  increasing  the  capacity  of 
the  river  by  removing  natural  obstructions  and  by  artificial  means- 
had  correspondingly  increased  the  duties  of  the  defendants ;  so 
that  if  prior  to  1884  the  dam  was  not  a  nuisance,  and  the  defend- 
ants could  not  have  been  made  responsible,  the  plaintiffs  by  their 
own  artificial  devices  converted  it  into  a  nuisance  to  the  public 
right  and  changed  the  liability  of  the  defendants.  But  the  court 
held  this  proposition  unsound  ;  that  the  plaintiffs,  by  their  charter, 
could  not  require  the  defendants  to  do  anything  in  removing  nat- 
ural obstructions  in  the  bed  of  the  river.  They  could  not  enter 
upon  the  defendants'  land  to  remove  any  obstructions  to  the  dam- 
age of  the  defendants  without  rendering  just  compensation,  if 
their  charter  in  the  exercise  of  the  right  of  eminent  domain  by 
the  State  had  conferred  upon  them  the  right  to  do  so.  As  they 
could  not  take  the  defendants'  property  for  the  purpose  of  accom- 
plishing their  objects,  under  their  charter,  without  just  compensa- 
tion, they  could  not  by  their  acts  under  their  charter  increase  tha 


Chap.  XXIV.]       FLOATAGE    OF    LOGS. —  NEGLIGENCE.  553 

obligations  of  the  defendants,  and  require  them  to  eonstmct  a 
larger  sluice  at  an  expense  of  $100  or  §200,  and  thus  substantially 
take  their  property  without  compensation. 

The  relative  rights  of  mill  owners  and  of  log  owners,  on  floata- 
ble streams,  have  recently  been  fully  discussed  and  determined  in 
Pearson  v.  liolfe,  76  Me.  3S0,  and  in  Foster  v.  Searspart  Spool 
<&  Block  Company,  79  Me.  508,  5  New  Eng.  Rep.  236. 

In  the  last  case  it  was  claimed  that  the  owner  of  a  mill-dam 
upon  a  floatable  stream  is  obliged  to  provide  a  sluice  through 
which  large  and  loosely  constructed  rafts  of  logs  may  be  run  with- 
out being  broken  up.  The  court  expressed  a  doubt  whether  the 
construction  of  such  a  sluice  is  practicable.  The  evidence  in  that 
case  shows  that,  when  one  of  these  rafts  enters  a  sluice,  the  more 
rapid  current  of  the  water  in  the  sluice  draws  the  front  logs  away 
from  the  rear  logs ;  and  that,  when  the  front  logs  reach  the  less 
rapid  current  at  the  outlet  of  the  sluice,  their  speed  is  suddenly 
checked,  and  the  rear  logs,  which  are  then  passing  through  the 
more  rapid  current  of  the  sluice  above,  are  driven  against  the 
front  logs  with  such  force  that  they  will  either  go  under  or  over 
them,  and  the  raft  be  thus  doubled  up  and  broken  to  pieces.  It 
is  doubtful  whether  it  is  jjracticable  to  construct  a  sluice  that  will 
avoid  these  results.  Unquestionably  a  lock  may  be  so  constructed. 
But  how  an  ordinary  sluice,  open  at  both  ends,  can  be  constructed 
that  will  avoid  them  was  not  demonstrated.  The  water  in  the 
sluice  must  inevitably  flow  more  rapidly  than  the  water  in  the 
pond  above,  and  when  the  front  end  of  a  long  raft  enters  this 
more  rapid  current,  there  w^as  no  method  suggested  which  can 
prevent  its  being  pulled  away  from  that  portion  of  the  raft  which 
still  remains  in  the  more  sluggish  water  of  the  pond  above.  And 
when  the  front  end  of  the  raft  strikes  the  more  sluggish  curreiit 
at  the  outlet  of  the  sluice,  and  its  speed  is  thereby  suddenly 
checked,  nothing,  it  seems,  can  prevent  the  more  rapidly  mov- 
ing logs  behind  from  being  driven  under  or  over  the  logs  in 
front.  Certainly  such  a  sluice  can  be  constructed,  if  constructed 
at  all,  only  at  very  great  expense, — an  expense  out  of  all  reasona- 
ble proportion  to  any  benefit  that  would  be  conferred  upon  the 
log  driver. 

It  has  never  been  decided  that  such  a  responsibility  rests  upon 


554  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

llie  mill  owner.  It  has  been  decided  that  he  must  furnish  the  log 
■driver  with  reasonably  convenient  facilities  for  running  his  logs. 
But  it  has  never  been  decided  that  he  is  obliged  to  furnish  locks 
or  sluices  through  which  large  and  loosely  constructed  rafts  of 
logs  can  be  run  without  being  broken  \\p  or  the  logs  displaced. 
It  would  be  unreasonable  to  require  liiin  to  do  so, — to  do  so  would 
place  upon  the  mill  owner  a  burden  out  of  all  proportion  to  any 
benefit  that  would  be  conferred  upon  the  log  driver. 

The  proof  in  Foster  v.  Searsport  Spool  c&  Block  Company,  su- 
pra, is  that,  for  the  express  purpose  of  accommodating  log  drivers, 
the  defendant  had  constructed  in  its  dam  a  good  and  substantial 
shiice,  30  feet  and  4  inches  wide,  and  61  feet  and  9  inches  long, 
the  descent  in  its  whole  length  being  only  3  feet  and  3  inches. 
And  it  was  admitted  that  the  facilities  thus  provided  were  legally 
sufficient  for  running  unrafted  logs.  But  the  plaintiff  undertook 
to  run  his  logs  in  rafts.  These  rafts  were  from  20  to  22  feet  wide, 
and  from  100  to  115  feet  long;  and  they  were  loosely  con- 
structed. Some  of  the  logs  had  no  fastenings,  and  were  held  in 
place  only  by  the  logs  by  which  they  were  surrounded.  The  re- 
sult was  that  in  their  passage  the  rafts  were  more  or  less  broken 
up.  The  witnesses  said  that  when  the  front  logs  entered  the  sluice 
Ihey  would  be  pulled  away  from  the  hind  logs,  and  that  when  the 
front  logs  reached  the  outlet  of  the  sluice  they  would  be  driven  to 
the  bottom  of  the  river,  and,  their  speed  being  thus  suddenly 
checked,  the  hind  logs  would  be  forced  on  top  of  them;  and.  in 
this  way  the  fastenings  would  be  loosened,  and  the  rafts  more  or 
less  broken  up.  And  it  was  for  the  delay  and  the  cost  of  recon- 
structing the  rafts  that  the  plaintiffs  claimed  compensation  from 
the  defendant. 

In  support  of  this  claim  it  was  contended  that  a  log  driver  is 
■entitled  to  the  same  facilities  for  running  iiis  logs  after  the  erec- 
tion of  a  dam  as  he  had  before;  that  if,  before  the  erection  of  a 
•dam,  he  could  run  rafts  of  logs  without  their  being  broken  up,  he 
is  entitled  to  the  same  facilities  after  the  dam  is  erected.  Tliis 
proposition  in  its  full  extent  cannot  be  sustained.  The  right 
to  erect  a  dam  upon  a  non-tidal  stream  is  a  clear  statutory  right. 
The  Legislature,  in  creating  it,  must  have  foreseen  that  its  exer- 
cise would  to  some  extent  necessarily  interfere  with  the  use  of 


Chap.  XXIY.]       FLOATAGE    OF    LOGS. —  NEGLIGENCE.  55') 

€uch  streams  as  highways.  It  is  impossible  to  believe  that  the 
Legislature  intended  that  this  newly-created  right  should  be  bur- 
dened with  the  expensive — if  not  the  impossible — obligation  of 
providing  for  log  drivers  the  same  facilities  for  running  their  logs 
as  they  had  before.  If  the  Legislature  had  so  intended,  it  would 
have  said  so.  The  statutes  impose  no  such  obligation.  They  are 
sileqt  upon  the  subject.  The  courts  have,  by  judicial  construc- 
tion, engrafted  upon  the  statutes  a  condition  in  favor  of  log  driv- 
ers, like  that  recognized  at  common  law  favoring  the  passage  of 
fish,'  to  the  extent  of  requiring  mill  owners  to  furnish  reasonable 
facilities  for  the  passage  of  logs ;  but  they  have  never  determined 
that  it  would  be  reasonable  to  require  them  to  furnish  locks  or 
sluices  through  which  large  and  loosely  constructed  rafts  of  logs 
may  be  floated  without  being  broken  up.  It  is  not  meant  to  say 
that  it  was  not  the  duty  of  the  mill  owner  to  prepare  a  sluice 
through  which  the  rafts  of  logs  could  be  run.  What  is  meant, 
the  court  in  that  ease  say,  is  that  the  sluice  prepared  by  the  de- 
fendant was  all  that  could  reasonably  be  required  of  it,  and  that  it 
was  not  responsible  for  the  breaking  up  of  the  rafts.  If  lum- 
bermen need  to  have  a  sluiceway  capable  of  aiding  and  accommo- 
dating the  floating  of  lumber  beyond  what  the  stream  would  nat- 
urally float  and  drive,  they  must  obtain  authority  from  the  public 
and  give  compensation  for  any  improvement  made  ;  or  they  must 
buy  it  if  the}''  use  it  as  their  own  property. 

Taking  into  consideration  the  situation  of  the  mill,  the  loca- 
tion, and  all  the  surrounding  circumstances  ;  taking  into  consider- 
ation the  burden  of  the  mill  owners,  and  taking  into  consideration 
the  necessities  of  the  log  drivers, — the  question  is  always,  Did  the 
mill  owners  furnish  a  reasonably  convenient  and  suitable  passage 
for  logs  on  the  river  in  its  natural  state,  at  a  drivable  pitch  ?  If 
they  did  that,  then  they  were  bound  to  do  no  more  and  they  are 
not  liable  to  the  log  drivers.  If  the  log  drivers  store  the  water  in 
a  reservoir  above,  the}'^  own  it,  and  they  have  a  right  to  let  it  down 
the  stream  and  to  run  their  logs  with  it,  and  to  require  the  facili- 
ties of  the  mill  owners — that  is,  a  sluice  such  as  they  would  be 
required  to  furnish  for  the  running  of  the  river  in  its  natural 
state,  in  a  drivable  pitch. 

^State  V.  Franklin  Falls  Co.  49  N.  H.  240. 


556  IMPOSED  DUTIES,  PEKSONAL.  [Part  II. 

The  right  to  raft  logs  down  the  stream  does  not  involve  the 
right  of  booming  them  upon  private  property,  for  safe-keeping  and 
storage,  an^^  more  than  the  right  to  travel  a  highway  justifies  the 
leaving  of  wagons  standing  indefinitely  in  front  of  private  dwell- 
ings or  stores.'  Nor  does  the  right  to  float  logs  confer  the  right 
to  run  them  upon  adjacent  lands  or  cause  the  water  to  overflow  to 
the  injury  of  the  shore  owner,^  One  who  selects  a  portion  of  a 
floatable  stream  for  storage  of  logs,  and  prevents  another  thereby 
from  entering  there  with  a  drive  of  logs  from  a  tributary,  is  liable 
for  damages/  Where  logs  are  driven  in  a  navigable  river  in  an 
ordinarily  prudent  and  skillful  manner  the  owner  is  not  liable  for 
damages  which  may  result  to  the  lands  of  the  riparian  owners/ 
But  a  riparian  owner  having  a  mill  upon  a  navigable  stream  may 
himself,  or  may  permit  another  to,  appropriate  the  bank  for  the 
purpose  of  receiving  logs,  and  construct  a  log- way  or  other  struc- 
ture extending  into  the  river,  for  the  purpose  of  facilitating  their 
removal,  thus  appropriating  a  portion  of  it,  even  though  his  land 
extends  only  to  low-water  mark,  providing  he  does  not  interfere 
with  the  public  easement  or  right  of  way/ 

a.  Boom  Companies.— Duties  and  Liahilities. 

An  Act  authorizing  the  construction  of  a  boom  on  the  south  side 
of  a  stream,  provided  it  shall  not  impede  navigation,  gives  author- 
ity to  use  the  shore  on  that  side  as  part  of  the  inclosure,  and  to 
erect  in  connection  therewith  such  piers  as  are  necessarj''  to  com- 
plete the  inclosure  on  the  other  side,  subject  to  the  restriction  a& 
to  impeding  navigation/ 

The  duty  of  a  river  boom  company  in  respect  to  logs  is  merely 

to  separate  and  turn  them  loose  into  the  river  and  conduct  them 

to  a  certain  point;  and  charges  are  legally  made  for  maintaining- 

booms  as  well  as  for  services/     The  rate  of  compensation  for 

^Lorman  v.  Benson,  8  Mich.  18;  OUon  v.  Merrill,  43  Wis.  213. 
^Haines  v.  Welch.  14  Or.  319;  Uackstaak  v.  Kesliena  Imp.  Co.  66  Wis.  439; 
Lilley  v.  Fletcher,  81  Ala.  234. 

^McPheters  v.  Moose  River  Log  Driving  Co.  78  Me.  329,  2  New  Eng.  Rep.  456. 

'^Field  V.  Apple  River  Log  Driving  Co.  67  Wis.  569. 

*  Williamsharg  Boom  Co.  v.  Smith,  84  Ky.  372. 

^Powers'  Appeal,  125  Pa.  175. 

''Mississippi  &  R.  R.  Boom  Co.  v.  Prince,  34  Minn.  79. 


Chap.  XXI Y.]       FLOATAGE    OF    LOGS. — NEGLIGENCE.  557 

driving  intermingled  logs  is  provided  for  generally  by  statute.' 
Boom  companies  are  not  insurers  of  the  logs  collected  b\'  their 
booms,  nor  are  they  liable  for  logs  which  escape  by  inevitable  ac- 
cident.' 

A  log  owner,  who,  with  full  knowledge,  consents  to  and  acqui- 
esces in  an  arrangement  by  which  a  coi'poration  collects  and  se- 
•cures  lost  or  scattered  logs  on  a  public  stream,  and  thereafter  upon 
demand  turns  them  over  to  the  owners  of  the  marks  upon  them 
upon  payment  of  the  prescribed  charges,  and  who,  from  year  to 
year,  suffers  the  scattered  logs  bearing  his  marks  to  be  so  gath- 
ered up  and  disposed  of,  is  bound  by  such  regulations;  and  where 
he  accepts  and  receives  as  his  own  logs  of  his  mark  which  he  had 
previously  sold,  or  their  equivalent  in  other  logs  turned  out  to 
him  by  the  corporation  in  pursuance  of  such  regulations,  and  sells 
and  converts  the  same  into  money,  he  is  liable  to  an  action  by  the 
true  owners  as  for  money  received  to  their  use.^ 

A  contract  for  the  driving  of  logs,  made  in  settlement  of  past 
disputes  and  litigation  between  a  timber  owner  and  a  logging 
company  having  a  monopoly  of  the  logging  business  upon  the 
only  streams  available  to  such  owner,  by  which  the  company 
agrees  to  drive  all  logs  of  the  owner  not  exceeding  a  certain 
amount  annually,  for  a  stipulated  annual  sum,  is  not  revocable  at 
pleasure,  where  its  recitals  show  that  it  was  to  remain  in  force 
until  all  the  timber  had  been  cut  and  the  logs  driven.^ 

b.  Compensation  for  Driving  Logs. 

In  an  action  to  recover  the  expense  of  running  and  driving  de- 
fendant's logs,  where  defendant  might,  by  reasonable  diligence 
and  skill,  have  cleared  the  stream  of  obstructions,  plaintiff  may 
proceed  to  pick  a  way  through  for  his  logs  to  pass  and  recover  the 
expense  of  driving  defendant's  logs  for  that  purpose.* 

^^QQ  Beard  v.  Clarke,  35  Minn.  324;  Chesley  v.  De  Graff,  35  Minn.  415; 
Walker  v.  Bean,  34  Minn.  437;  Oreen  v.  Knife  Falls  Boom  Co.  35  Minu. 
155. 

^Broion  v.  SusqueJianna  Boom  Co.  109  Pa.  57. 1  Cent.  Rep.  56;  Pennsylvania 

dh  0.  Canal  Co.  v.  Oraham,  63  Pa.  290. 
^Libby  v.  Johnson,  37  Minn.  220. 

*Bobson  V.  Mississippi  River  Logging  Co.  43  Fed.  Rep.  364. 
^Butterjield  v.  Oilchrist,  63  Mich.  155,  5  West.  Rep.  744. 


558  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

A  statute  which  empowers  any  log  owner  to  drive  logs  belong- 
ing to  others,  when  intermingled  with  his  own,  is  not  invalid  on 
the  ground  that  it  abridges  or  impairs  the  general  right  of  all  per- 
sons to  the  use  of  a  river  for  driving  their  own  logs.' 

c.  Intermingling  and  Confusion  of  Logs. 

Floating  logs  distinctly  marked  are  not  subject  to  confusion  or 
commixture  of  goods  in  the  sense  implied  in  those  terms  in  law ;. 
but  for  their  conversion  into  money  knowingly  and  without  right 
a  party  is  liable  to  the  owner."  Where  two  lots  of  logs  of  the 
same  quality  and  mark  become  intermingled  without  fault  of 
either  party,  each  person  will  be  entitled  to  his  proportional  part 
of  the  whole  lumber  manufactured  therefrom.^ 

A  person  who,  knowing  of  the  obstruction  of  a  stream  by  a  jam 
of  logs,  drives  his  rafts  upon  them  without  allowing  the  owners- 
time  to  remove  them,  is  guilty  of  contributory  negligence  which 
will  defeat  a  recovery  for  damages  sustained  by  the  loss  of  his 
timber  in  attempting  to  pass  the  obstruction.*  And  the  same 
rule  applies  where  there  are  dangerous  structures  over  the  stream. 
Thus,  where  the  statute  authorizes  the  building  of  a  bridge  across- 
a  stream,  if  built  so  as  not  to  obstruct  or  unreasonably  imjDede 
navigation,  the  floatage  of  logs  must  be  with  due  and  reasonable 
regard  to  the  rights  of  tlie  bridge  owner.  If  he  provides  sufficient 
space  and  proper  conveniences  for  the  passage  of  logs,  singly  or 
in  rafts,  the  floatage  must  be  conducted  in  such  manner,  as  to- 
numl^ers  or  condition  of  logs,  as  will  suit  the  passageway.  Fail- 
ing in  this,  if  injury  results  to  the  bridge,  the  owner  will  be  enti- 
tled to  compensation  therefor.^ 

A  bridge  having  a  space  of  over  50  feet  for  the  passage  of  log?,, 
and  guide  booms  to  direct  the  floatage,  was  held  not  to  conflict 
with  proper  navigation  of  the  river  there ;  and  letting  loose  3,500 
or  4,000  logs  on  rising  waters,  to  be  precipitated  against  the  bridge,. 

1  Wisconsin  E.  L.  D.  Aaso.  v.  Comstock  Lumber  Go.  72  Wis.  464,  1  L.  R.  A. 

717. 
^Goffy.  Bminerd,  58  Vt.  468,  2  New  Eng.  Rep.  612. 
^Martin  v.  Mason,  78  Me.  452,  3  New  Eng.  Rep.  265. 
marold  V.  Jones,  86  Ala.  274,  3  L.  R.  A.  40G. 
^Bucki  V.  Cone,  25  Fla.  1. 


Chap.  XXIY.]  WHARFAGE    AND   WHARVES.  550 

was  held  to  be  negligence  which,  if  resulting  in  the  destruction  of 
the  bridge,  entitled  the  owner  to  damages  from  the  negligent 
party.' 

Where  a  railroad  company  has  been  granted  the  right  to  build 
a  bridge  over  a  navigable  stream,  the  proper  and  necessary  re})air 
of  such  bridge  without  negligence  cannot  subject  the  company  to 
liability  for  damages  caused  thereby ;  and  injuries  suffered  by  the 
driving  of  piling  in  the  making  of  such  repairs,  by  a  person  raft- 
ing the  logs  on  the  stream,  is  damnum  absque  injuria.* 

Section  1^.— Wharfage  and  Wharves. 

That  an  owner  of  land  bounded  by  navigable  waters  possesses 
important  riparian  rights  by  virtue  of  such  ownership,  is  not  open 
to  question.^  Riparian  right  is  property,  of  which  the  owner  can 
be  deprived  only  if  necessary  that  it  be  taken  for  the  public  good, 
upon  due  compensation.*  A  riparian  proprietor  whose  land  is 
bounded  by  a  navigable  river  has  the  right  of  access  to  the  navi- 
gable part  of  the  river,  and  the  right  to  make  a  landing,  wharf 
or  pier  for  his  own  use  or  for  the  use  of  the  public.^  He  has  an 
exclusive  right  to  the  soil  between  high  and  low  water  mark,  for 
the  purpose  of  erecting  wharves  and  stores  thereon.'  He  is  at 
liberty  to  construct  and  moor  to  his  bank  a  floating  wharf  and 
boathouse  which  is  not  an  obstruction  to  navigation.''  There  is 
the  same  necessity  for  such  erections  on  lakes  as  in  the  bays  and 
arms  of  the  sea.'  The  right  of  a  riparian  proprietor  upon  navi- 
gable waters  to  improve,  reclaim  and  occupy  the  submerged  lands 
out  to  the  point  of  navigability,  although  originally  incident  to 
the  riparian  estate,  may  be  separated  therefrom  and  be  transferred 
to  and  enjoyed  by  persons  having  no  interest  in  the  original  ripa- 
rian estate.*  But  this  right  cannot  be  acquired  by  the  public  by 
custom  or  prescription,  nor  does  the  doctrine  of  dedication  by  pa- 

^Bucki  V.  Cone,  25  Fla.  1. 

^Central  Irust  Co.  v.  Wabash.  St.  L.  &  P.  R.  Co.  32  Fed.  Rep.  566. 

^*^St.  Paul  &  P.  R.  Co.  V.  ScJmrmekr,  74  U.  S.  7  Wall.  272,  I'J  L.  ed.  74- 
Yates  V.  Milwaukee,  77  U.  S.  10  Wall.  497.  19  L.  ed.  984. 

*Ladies  Seamen's  Friend  Soe.  v.  Ilalstead,  58  Conn.  144. 

''Booth  V.  Ratte,  L.  R.  15  App.  Cas.  188. 

^Button  V.  Strong,  66  U.  S.  1  Black,  23,  17  L.  ed.  29. 

^Hanfordv.  St.  Paul&B.  R.  Co.  43  Minn.  104.  7  L.  R.  A.  723. 


560  IMPOSED   DUTIES,  PERSONAL.  [Part  II. 

rol  of  highways  and  public  squares  apply  to  public  landings.'  He 
has  the  privilege  of  building  a  wharf  out  to  such  a  depth  of  water 
as  will  enable  shi23S  or  vessels  to  touch  thereat,  and  receive  or  dis- 
charge freight,  and  may  apply  such  frontage  to  any  use  not  incon- 
sistent with  the  rights  of  the  public.  He  may  reserve  these  rights 
to  himself  M'hen  he  conveys  away  the  land  above  high-water  Jiiark 
to  which  they  pertain,  or  he  ma,y  grant  them  to  others  to  enjoy, 
but  in  subordination  to  the  public  right  of  navigation.  Such 
rights,  however,  are  mere  incorporeal  hereditaments. 

The  land  below  high-water  mark  upon  a  navigable  river,  -which 
is  a  tidal  river  at  common  law,  and  in  New  York,  Connecticut 
and  Massachusetts,"  and  which  constitutes  a  part  of  its  bed,  be- 
longs, according  to  some  of  the  authorities,  to  the  State  in  its  sov- 
ereign capacity,  subject  to  the  riparian  rights  of  the  owner  of  the 
land  above  and  adjacent  thereto.  The  State,  however,  cannot  sell 
it,  nor  can  the  State  control  its  use  except  to  increase  the  facilities 
for  navigation  and  commerce.  Nor  can  the  riparian  proprietor 
grant  such  land,  or  any  right  thereto,  except  such  right  as  he  him- 
self is  entitled  to  enjoy.  He  can  only  grant  the  franchise  as  be- 
fore suggested.^  Thus,  where  S.,  who  owned  a  donation  land 
claim,  bounded  by  high-water  mark  on  the  tide-waters  of  the  Col- 
umbia River,  laid  off  a  block  in  front  of  his  claim,  extending  be- 
yond low-water  mark,  and  sold  lots  therein  to  the  defendant,  but 
reserved  in  the  deed  of  conveyance  all  the  hereditaments,  appur- 
tenances, franchises  and  wharfing  privileges,  fronting  on  the 
north  of  the  northern  boundary  line  thereof,  which  hereditaments, 
appurtenances,  etc.,  he  subsequently  granted  to  the  plaintiff;  and 
the  defendant,  disregardiiig  said  reservation,  built  and  erected 
structures  in  the  navigable  waters  of  the  river  in  front  of  the 
northern  boundary  line  of  the  lots  purchased, — Held,  that  the 

^Pearsall  v.  Post,  20  Wend.  Ill,  22  Wend.  425;  Talbott  v.  Grace,  30  Ind. 
389;  State  v.  Wilson.  42  Me.  9;  LittlefieM  v.  Maxwell,  31  Me.  134;  Gardi- 
ner V.  Tisdale,  2  Wis.  153;  People  v.  GunningUam,  1  Denio,  524;  Graves 
V.  Shattuck,  35  N.  H.  257;  Gerrish  v.  Brown,  51  Me.  256,  263;  Penny  Pot 
Landing,  16  Pa.  79.  But  s,eeAsketci  v.  Wynne,  7  Jones,  L.  22;  Kean  v. 
Stetson,  5  Pick.  492;  Boston  v.  Riclmrdmn,  105  Mass.  351,  357;  Gould, 
Waters,  191;  Brisbine  v.  St.  Paul  &  8.  C.  B.  Co.  23  Minn.  113;  Connehan  v. 
Ford,  9  Wis.  240;  Grant  v.  Davenport,  18  Iowa,  179;  Newportv.  Taylor,  16 
B.  Mod.  699;  Godfreys.  Alton,  12111.  BO-Mclntyrev.  Storey,  80111. 127, 130. 

^Com.   V.  Chapin,  5  Pick.  199;  Com.  v.  Charleston,  1  Pick.  186,  note  1. 

^Case  V.  Loftus,  39  Fed.  Rep.  730,  5  L.  R.  A.  684;  Henry  v.  Newburyport, 
149  Mass.  582,  5  L.  R.  A.  179. 


Chap.  XXIV.]  WHARFAGE    AND   WHARVES.  5G1 

plaintiff  had  no  such  tangible  interest  in  tlie  hmd  and  water  wliere 
the  structures  were  situated  as  would  enable  him  to  recover  it  in 
an  action  for  the  I'ecoverj  of  the  possesi^ion   of  real  property.' 
The  private  interest  in  submerged  soil  at  the  bottom  of  a  river, 
which  hadbeen  granted  to  a  person  by  a  State,  is  subject  to  the 
paramount  right  of  the  public  to  use  the  river  for  navigation,  and  of 
the  United  States,  in  the  regulation  of  commerce,  to  erect  thereon 
such  aids  to  navigation  as  are  reasonably  necessary ;  and  his  right 
to  improve  out  into  the  river,  until  actually  availed  of,  is  subject 
to  the  right  of  the  United  States  to  use  the  soil  under  the  water 
in  aid  of  navigation,  without  his  consent  and  without  compensa- 
tion."    The    compact  between   Vii'ginia  and  Maryland  of  1785 
secured  to  their  citizens  and  those  of  the  Disti-ict  of  Columbia 
"  the  privilege  of  nuiking  and  carrying  out  wharves"  on  the  shores 
of  the  Potomac  onl}'  so  far  as  they  were  "adjoining  their  lands.'" 
The  establishment  of  a  dock  or  harbor  line  in  pursuance  of  legis- 
lative authority  is  to  be  construed  as  giving  to  the  owners  of  the 
upland  the  privilege  of  tilling  in   and  building  out  to  such  line.^ 
And  where  owners  of  upland,  after  the  estal)lishment  of  a  dock 
line,  adopted  a  survey  and  plan  of  improvement  for  the  use  and 
occupation,  to  such  line,  of  the  submerged  land  abreast  of  the 
upland  owned  by  them,  they  had  the  right  to  transfer  to  othei- 
parties  the  same  rights  which  they  had  within  the  dock  line,  and 
bind  themselves  and  their  grantees  of  the  upland  by  appropriate 
covenants  against  interference  with  the  rights  in  the  submerged 
land  thus  transferred.^     A  state  statute  may  operate  as  a  legislat- 
ive grant  where  the  title  is  in  the  public,  of  an  interest  in  the  soil 
below  low  water,  and  confer  the  right  to  lot  owners  on  a  river  to 
build  wharves.* 

<i-  Unlawful  Interference  with  Approach  to  WJiarf. 

The  owner  of  a  floating  wharf  and  boathouse  moored  to  the 
shore  of  a  river  can  maintain  a  private  action  for  unauthorized 

^Parker  v.   West  Coast  Packiny  Co.  17  Or.  510,  5  L.  R.  A.  61. 

^Hawkins  Point  Lightliouse  Case,  39  Fed.  Rep.  77. 

^Potomac  Steamboat  Co,  v.  Upper  Potomac  Steamboat  Co.  109  U.  S.  G72,  27  L. 

ed.  1070. 
*  '^MUler  V.  Mendenhall,  43  Minn.  95,  8  L.  R.  A.  89. 
*Hamlin  v.  Pairpoint  Mfg.  Co.  141  Mass.  51,  2  New  Eng.  Rep.  143. 
36 


5G2  IMPOSED  DUTIES,  PEKSONAL.  [Part  II. 

interference  with  the  flow  and  purity  by  deposits  of  sawdust  from 
mills  in  such  quantity  as  to  deprive  him  of  the  enjoyment  of  the 
river  and  of  his  business  of  hiring  and  housing  pleasure  boats.* 
In  Breed  v.  Lynn,  126  Mass.  367,  the  owners  of  a  wharf  and 
dock  who  had  dredged  out  a  channel  from  their  dock  to  some  ex- 
tent over  flats  belonging  to  others,  and  beyond  the  limits  of  their 
own  ownership,  which  channel  was  injured  and  filled  up  by  the 
discharge  of  sewage  from  a  common  sewer  into  the  dock,  were 
entitled  to  recover  so  far  as  the  injury  was  within  the  limits  of 
their  ownership,  but  not  beyond.  The  fact  that  they  had  pre- 
pared this  channel  on  the  lands  of  others  gave  them  no  special 
right  that  it  should  be  kept  oj)en  and  clear,  although  its  filling  se- 
riously interfered  with  access  to  their  wharf. 

b.  Wharf  Rights.— Public  and  Private  Landings, 

In  Bainbridge  v.  Sherlock,  29  Ind.  364,  it  is  said  :  "The  river 
being  public,  and  its  banks  being  private,  it  is  not  diflicult  to  dis- 
cover the  true  foundation  of  those  riparian  rights,  known  as 
'wharf  rights.'  It  is  essential  to  the  successful  prosecution  of  his 
business  that  the  navigator  shall  make  frequent  landings  to  lade 
and  unlade,  to  receive  and  discharge  joassengers  and  to  receive 
supplies.  But,  except  in  case  of  some  peril  or  emergency  of  nav- 
igation, he  cannot  thus  land  without  the  consent  of  the  riparian 
owner,  and,  in  return  for  the  privilege  of  landing,  a  reasonable 
compensation  may  be  demanded.     This  is  the  origin  of  wharfage.'^ 

Riparian  owners  have  claimed  and  exercised  the  right  to  con- 
struct wharves  and  landing  places  on  navigable  streams,  from  the 
earliest  settlement  of  this  country,  subject  to  the  limitation  that 
the  public  easement  or  servitude  is  not  impaired.  The  owner  has 
the  same  dominion  and  power  to  control  such  landing  places  as 
any  other  private  property,  and  to  possess  and  use  the  same  to  the 
exclusion  of  the  public.  The  right  to  raft  timber  does  not  imply 
or  carry  with  it  the  right  to  deposit  it  upon  private  property  pre- 
paratory to  being  rafted.  Campbell,  «/.,  says :  "The  right  to 
raft  logs  down  the  stream  does  not  involve  the  right  of  booming 
them  upon  private  property  for  safe  keeping  or  storage,  any  more 

^Booth  V.  Ratte,  L.  R.  15  App.  Cas.  188. 


Chap.  XXIY,]  WHARFAGE   AND    WHARVES.  503 

than  the  right  to  travel  a  highway  justifies  the  leaving  of  wagons 
indefinitely  in  front  of  private  dwellings  or  stores."*  No  one  has 
a  common-law  right  to  store  or  deposit  logs  or  timber  at  a  private 
landing  for  the  purpose  of  rafting.  Piers  or  landing  places,  and 
even  wharves,  may  be  private  or  puljlic,  although  the  property 
may  be  in  an  individual  owner.'  And  the  right  to  erect  the  same 
must  be  understood  as  terminating  at  the  point  of  navigability.' 
The  owner  may  have  a  right  to  the  exclusive  enjoyment  of  wharves 
and  permanent  piers,  or  he  may  be  under  obligation  to  concede  to 
others  the  privilege  of  landing  their  goods  or  of  mooring  their 
vessels  there.  A  riparian  proprietor  may  construct  any  one  of 
these  improvements  for  his  own  exclusive  use  or  benefit.*  And 
wharves  and  permanent  piers  constructed  by  the  riparian  pro- 
prietor on  the  shores  of  navigable  rivers,  bays  and  arms  of  the 
sea,  or  on  the  lakes,  where  they  do  not  extend  below  low-water 
mark,  are  not  a  nuisance,  unless  they  are  an  obstruction  to  navi- 
gation.' Nor  can  a  city,  by  creating  a  merely  artificial  and  imag- 
inary dock  line,  deprive  riparian  owners  of  the  right  to  avail  them- 
selves of  the  advantage  of  the  navigable  channel  by  building 
wharves  and  docks  to  it.*  The  State  may  prescribe  lines  in  the 
harbor  of  a  city  beyond  which  piers,  etc.,  may  not  be  built  by  ri- 
parian owners;'  and  in  the  case  of  a  city  having  power  by  its 
charter  to  maintain  a  breakwater,  upon  the  erection  of  such  break- 
water and  filling  in  of  the  space  between  it  and  the  shore  line,  the 
land  thus  reclaimed  belongs  to  the  city,  and  a  wharf  would  be  a 
public  one.* 

Where  a  wharf  is  public,  the  owner  is  under  obligations  to  con- 
cede to  others  the  privilege  of  landing  their  goods.  If  private, 
he  has  the  right  to  the  exclusive  use  and  enjoyment,  or  to  pei-mit 
such  individuals  to  enjoy  it  as  he  sees  proper.  Whether  a  wharf 
or  landing  is  public  or  private  depends  upon  the  ownership  of  tlic 
soil,  the  pui'poses  for  which  it  was  built,  the  authority  by  which  it 
was  erected,  the  uses  to  which  it  has  been  applied  and  the  nature 
and  character  of  the  structure.     If  the  land  on  which  it  is  con- 

^Lorman  v.  Benson,  8  Mich,  18. 

s  3  4  iBatton  V.  Strong,  66  U.  S.  1  Black,  23,  17  L.  ed.  29. 

^Tatesv.  Milwaukee,  77  U.  S.  497,  19  L.  ed.  984. 

'  ^ State  V.  Illinois  Cent.  R.  Co.  3o  Fed.  Rep.  730. 


564  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

structed  is  vested  in  the  public,  or  is  built  by  public  authority  on 
land  condemned,  or  if  it  be  at  the  terminus  of  a  public  highway 
and  practically  forms  a  part  thereof,  or  has  been  dedicated  by  the 
owner  to  the  use  of  the  public,  it  may  be  regarded  as  a  public 
wharf  or  landing.'  The  right  to  erect  a  landing  on  a  navigable 
stream  having  its  foundation  in  the  ownership  of  the  land,  when 
erected  by  an  individual  at  his  own  expense,  it  is  private  property.' 

It  is  well  settled  that  the  public  n?ay  acquire  an  easement, — a 
right  to  the  use  of  such  landing, — by  dedication  on  the  part  of  the 
owner  of  the  soil.^  But  use  by  individuals,  with  the  permission 
of  the  owner,  does  not  give  the  public  the  right  to  do  the  same 
without  his  consent.*  Use  by  the  public  with  his  permission,  and 
for  his  own  emolument,  for  no  number  of  years  will  amount  to 
dedication. 

In  Post  V.  Pearsall,  22  Wend.  425,  after  an  elaborate  consid- 
eration of  the  question,  it  was  held  that  the  public  have  not  the 
right,  against  the  will  of  the  owner,  to  use  and  occupy  the  land 
adjoining  navigable  waters  as  a  public  lauding  and  place  of  de- 
posit of  property  in  its  transit  to  and  from  vessels  navigating  such 
waters,  although  such  user  has  been  continued  upwards  of  twenty 
years  with  the  knowledge  of  the  owner. 

In  O'Neill  V.  Annett,  27  K.  J.  L.  290,  the  action  was  brought 
to  recover  damages  for  the  defendant's  refusal  to  permit  vessels 
to  discharge  a  cargo  of  coal  upon  his  wharf.  The  declaration  al- 
leged that  it  was  a  public  w^iarf,  and  the  jury  so  found.  The 
wharf  was  built  by  defendant  at  his  own  expense  more  than 
twenty  years  previously.  A  public  turnpike  passed  or  terminated 
near  the  wharf,  but  it  does  not  appear  that  it  extended  to  the 
landing,  or  that  there  was  any  connection  between  them,  except 
that  the  public  passed  and  repassed  from  one  to  the  other  without 
interruption.     During  the  whole  period  of  its  existence,  vessels 

Wincinnati  v.  White,  31  U.  S.  6  Pet.  431,  8  L.  ed.  453;  San  Francisco,  A.  & 
S.  R.  Co.  V.  Caldwell,  31  Cal.  385;  Cook  v.  Burlington,  30  Iowa,  94,  36 
Iowa,  357;  SclLermerlwrn  v.  New  York,  3  Edw.  Ch.  119,  6  N.  Y.  Ch.  L.  ed. 
594;  Alves  v.  Henderson,  16  B.  Mon.  152;  Day  v.  Allender,  23  Md.  511; 
Coolidge  v.  Learned,  8  Pick.  504;  Oreen  v.  Chelsea,  24  Pick.  71;  Kean  v. 
Stetson,  5  Pick.  492,  495. 

^T7ie  Wharf  Case,  3  Bland,  Ch.  361. 

^Coolidge  v.  Learned,  8  Pick.  504;  Day  v.  Allender,  33  Md.  511. 

*mil  V.  Lord.  48  Me.  83,  97. 


Chap.  XXIY.]  WHARFAGE    AND    WnARVES.  505 

had  been  in  the  habit  of  loading  and  unloading  at  the  wharf,  and 
it  had  been  used  by  persons  in  the  vicinity  as  a  place  of  deposit 
for  lumber,  wood,  brick  and  other  materials,  the  owner  being  paid 
for  such  use.  It  was  ruled  that  the  wharf  was  private  property, 
and  that  the  consent  of  the  owner  must  be  obtained  before  the 
public  had  a  right  to  use  it.  It  is  said :  "  It  is  difficult  to  con- 
ceive of  evidence  that  could  more  clearly  negative  the  idea  of 
dedication  to  public  use,  or  more  satisfactorily  establish  the  fact 
that  the  proprietor  was  using  the  property  for  his  own  private 
emolument." 

The  objects  for  which  a  private  landing  may  be  held  and 
used  may  be  public  witliout  affecting  its  private  character.  In 
such  case,  there  is  an  implied  license  to  vessels  navigating  the 
stream  to  use  it  for  receiving  and  discharging  freight  and  pas- 
sengers, and  also  to  all  persons  to  occupy  it  for  lawful  and  ac- 
customed purposes ;  but  the  owner  may,  at  any  time,  revoke  the 
license  as  to  the  entire  public,  or  withhold  permission  from  par- 
ticular vessels  or  persons.' 

The  fair  inference  is  that  a  landing  on  a  navigable  river  is  in- 
tended for  the  loading  or  unloading  of  the  craft  navigating  the 
river,  and  as  the  place  of  deposit  of  such  freight  as  they  usually 
transport.  The  owner  is  authorized  to  prohibit  the  use  of  a  land- 
ing intended  and  applied  to  such  purposes,  for  unusual  and  unac- 
customed purposes,  such  as  the  storage  and  keeping  of  timber  to 
be  rafted,  which  may  obstruct  free  access  to  and  from  the  ves- 
sels." 

When  a  grant  from  the  State,  of  land  under  water,  confers  no 
other  right  than  to  make  a  wharf  for  the  purpose  of  promoting 
the  commerce  of  the  State  and  to  collect  tolls  for  its  use,  subject 
to  the  regulation  of  the  Legislature,  the  wharf  erected  thereunder 
must  be  open  to  public  use,  and  the  courts  will  not  aid  the  grantee 
in  restricting  its  use  to  particular  persons  or  purposes.*  A  pub- 
lic pier  in  a  city  is  a  part  and  parcel  of  its  public  streets,  and  tlio 
public  have  a  right  to  enter  upon  the  pier  in  the  same  manner  as 
upon  public  streets.* 

^Sicords  V.  Edgar,  59  N.  Y.  28;  Steele  v.  Sullivan,  70  Ala.  589. 

Womptonv.  Hawkins  (Ala.  June  17.  1890)  9  L.  R.  A.  387. 

^Harper  v.  Williams,  110  N.  Y.  200,  13  Cent.  Rep.  433. 

*Gluckv.  Eidgewood  Ice  Co.  (Sup.  Ct.  March  28,  1890)  31  N.  Y.  S.  R.  99. 


566  IMPOSED  DUTIES,  PERSONAL.  [Part  IL 

» 

c.  Liability  of  Wharf  Owner  or  Occupier. 

The  liability  of  the  wharf  owner  or  lessee  for  negligence  caus- 
ing injury  has  been  heretofore  stated.'  It  is  the  duty  of  the 
owner  or  occupier  of  a  wharf,  so  long  as  he  maintains  it,  to  make 
such  inspection  as  its  construction  and  situation  may  render  nec- 
essary to  keep  it  and  the  approaches  to  it  by  land  or  water  in  safe 
condition.  The  owner  of  a  wharf  is  liable  for  damages  caused  to 
a  vessel  by  concealed  obstructions  which  he  might  have  ascertained 
by  reasonable  diligence.''  A  boulder  TfV  feet  below  the  surface  at 
low  water,  within  6  to  8  feet  from  a  bulkhead  where  a  boat  draw- 
ing between  8  and  9  feet  is  moored,  is  such  an  obstruction  as  the 
owner  of  the  wharf  could  discover  by  the  exercise  of  reason- 
able care.^  Nor  may  objects  project  from  the  wharf  to  interrupt 
or  endanger  navigation.* 

A  dock  owner  is  liable  to  a  vessel  owner  for  injury  to  a  vessel 
through  a  defect  in  the  bottom  of  a  stream  at  the  place  where 
moored,  and  known  to  the  former  but  not  known  or  communicated 
to  the  latter.^ 

Where  one  entitled  to  use  a  dock  suffers  injury,  his  right  of  ac- 
tion does  not  depend  uj)on  whether  the  channel  was  properly 
opened  or  has  been  permitted  to  become  subsequently  obstructed.* 
The  rule  of  liability  is  not  the  same  in  all  cases,  and  the  correct- 
ness of  instructions  as  to  the  measure  of  care  due  to  one  whose 
rafts  had  been  carried  away  from  a  wharf  cannot  be  determined 

»See  ante,  p.  19,  note  2,  pp.  48,  49,  57,  67. 

^aRourke  v.  Peck,  29  Fed.  Rep.  223:  Buckhee  v.  Brown,  21  Wend.  110;  Bar- 
ber V.  Ahendroth,  102  N.  Y.  406.  3  Cent.  Rep.  637;  Garleton  v.  Franconia 
Iron  &  Steel  Co.  99  Mass.  216;  Parnaby  v.  Lancaster  Canal  Co.  11  Ad.  & 
El.  223;  Mersey  Dock  v.  Oibbs,  L.  R.  1  H.  L.  Cas.  93;  Gibbs  v.  Liverpool 
Dock,  3  Hurl.  &  N.  164. 

'Manhattan  Transp.  Co.  v.  Mayor,  37  Fed.  Rep.  160.  See  Carleton  v.  Fran- 
conia Iron  &  Steel  Co.  99  Mass.  216;  Exchange  Fire  Ins.  Co.  v.  Delaware 
Canal  Co.  10  Bosw.  180;  Johnson  v.  Belden,  47  N.  Y.  130;  Curling  v. 
Wood,  16  Mees.  &  W.  628;  Pittsburg  y.  Wier,  22  Pa.  54;  Sweeny  v.  Old  Colony 
i&N.  R.  Co.  10  Allen,  3G8;  Elliott  v.  Pray,  Id.  378;  Weitner  v.  Delaware 
Canal  Co.  4  Robt.  234;  Nelson  v.  Phcenix  Gliemical  Works,  7  Ben.  37;  Wen- 
dell  V.  Baxter,  12  Gray,  494;  Seaman  v.  New  York,  80  N.  Y.  239; 
Parnaby  v.  Lancaster  Canal  Co.  11  Ad.  &  El.  223;  Borden  Min.  Co.  v. 
Barry,  17  Md.  419. 

*Dalton  V.  Denton,  1  C.  B.  N.  S.  672. 

^Barber  v.  Abendroth,  102  N.  Y.  406,  3  Cent.  Rep.  637. 

^Thompson  v.  North  Eastern  R.  Co.  31  L.  J.  N.  S.  Q.  B.  194;  Bartlett  v.  Baker, 
3  Hurl.  &  C.  153;  White  v.  Phillips,  15  C.  B.  N.  S.  245. 


Chap.  XXIY.]  WHARFAGE    AND    WHARVES.  5G7 

where  it  is  not  shown  whether  lie  was  a  navigator  of  tlie  river  on 
which  the  wharf  was  situated,  or  a  manufacturer  using  the  wharf 
mei'elj  for  storage  as  a  lessee.'  Occupants  of  a  wharf,  having 
general  possession  and  control,  are  under  obligations  to  keep  the 
premises  in  reasonably  safe  condition  for  the  use  of  all  persons 
who  may  lawfully  resort  there ;  and  any  person  lawfully  going 
there  for  the  transaction  of  business  to  which  the  premises  are  ap- 
propriated has  a  right  to  assume  that  the  structure  itself  and  the 
access  to  it  are  in  a  reasonably  safe  condition.'  This  duty  rests 
upon  the  owners  of  docks,  as  well  as  upon  those  who  occupy  them, 
to  exercise  reasonal)le  care  to  see  that  they  are  sufficient  for  the 
use  of  vessels.*  They  are  not  held  to  guarantee  such  condition, 
however;*  and  a  scow  platform  designed  to  be  moored  alongside 
a  wharf  so  that  horses  with  carts  could  be  driven  over  it  from  the 
wharf,  with  dirt  or  other  refuse  to  be  dumped  into  boats,  and 
which  was  mainly  stationary  and  rarely  moved,  though  capable  of 
being  towed  from  one  wharf  to  another,  and  having  no  motive 
power,  rudder  or  sails, — is  not  a  vessel  within  the  meaning  of  the 
maritime  law.^  A  wharf  boat  is  part  of  the  wharf  itself."  Where 
the  owner  of  a  wharf  leases  it  to  a  tenant,  and  it  is,  at  the  time  of 
leasing,  not  in  a  safe  condition,  and  the  owner  well  knew,  or  could, 
l)y  reasonable  diligence,  have  known  of  such  condition,  and  one 
lawfully  upon  it  is  subsequently  injured  by  reason  of  such  condi- 
tion, the  owner  is  liable  for  the  injury.' 

The  fact  that  the  door  and  fastenings  were  in  good  repair  when 
the  right  to  collect  wharfage  and  cranage  at  a  pier  was  assigned, 
will  not  relieve  the  assignor  of  the  duty  to  keep  the  wharf  in  safe 
condition.* 

^Crawford  Y.  AllegTieny  (Pa.  Jan.  7,  1889)  23  W.  N.  C.  141. 

^O'Rourke  v.  Peck,  40  Fed.  Rep.  907;  Smith  v.  London  &  St.  E.  Bockx  Co. 
L.  R.  3  C.  P.  326;  Pittsburg  v.  Qrier,  23  Pa.  54;  Thompson  v.  North  East- 
ern R.  Co.  31  L.  J.  N.  S.  Q.  B.  194. 

^Manley  v.  St.  Helen's  Canal  &  R.  Co.  2  Hurl.  &  N.  840;  Exchange  Fire  Ins. 
Co.  V.  Delaware  &  L.  Canal  Co.  10  Bosw.  180;  Smith  v.  London  &  St.  K. 
Docks  Co.  L.  R.  3  C.  P.  326;  White  v.  France'.,  L.  R.  2  C.  P.  Div.  308. 

^Exchange  Ins.  Co.  v.  Delaware  &  L.  Canal  Co.  10  Bosw.  180. 

^Raddiman  v.  A  Scow  Platform,  38  Fed.  Rep.  158. 

^Davis  V.  Reamer,  104  Ind.  318,  3  West.  Rep.  317. 

''Albert  v.  State,  66  Md.  325,  6  Cent.  Rep.  447;  Leary  v.  Woodruff,  4  Hun,  99; 
Campbell  v.  Portland  Sugar  Co.  02  >Ie.  552. 

^Cleary  v.  Oceanic  Steam  Nav.  Co.  40  Fed.  Rt-p.  908. 


568  IMPOSED  DUTIES,  PERSONAL.  [Part  II. 

One  who  leases  a  public  pier,  and  allows  a  hole  to  remain  there- 
in for  a  long  period,  is  liable  for  an  injury  sustained  by  another 
by  falling  through  the  hole;*  but  not  to  a  trespasser,  unless  the 
defect  is  a  public  nuisance." 

A  corporation  having  actual  knowledge  or  the  means  which,  if 
properly  exercised,  would  inform  it  of  the  defective  condition 
of  the  works  under  its  charge,  is  liable  to  all  persons  lawfully 
there  for  any  injury  which  may  result  from  its  negligence  in 
omitting  to  make  repairs.^ 

So  long  as  a  wharf  is  accessible  and  open,  it  must  be  securely 
kept,  and  notice  of  defects  must  be  given,  even  before  repairs  are 
attempted,  if  the  danger  is  immediate,  or  the  wharf  must  be 
closed.* 

d.  Wharfage  Fees  and  Charges. 

The  same  principles  are  applicable  to  and  regulate  the  use  of 
watercourses  as  highways.  The  right  of  transportation  over  a 
stream  includes  the  right  to  make  such  uses  of  it  as  are  essentia! 
to  the  exercise  and  enjoyment  of  the  right  to  navigate  and  trans- 
port. Such  a  right  has  been  held  to  include  the  right  of  anchor- 
age, of  mooring  to  wharves,  and  to  moor  logs  and  rafts  for  the 
purpose  of  making  up  or  breaking  the  rafts,  provided  there  is  no 
interference  with  the  rights  of  riparian  proprietors.'-  Reasonable 
compensation  can  be  exacted  by  the  owner  for  the  use  of  wharves.' 

WlucTc  V.  Eidgewood  Ice  Go.  (Sup.  Ct.  Mar.  28,  1890)  31  N.  Y.  S.  R.  99. 

"^Onderdunk  v.  Bmith,  27  Fed.  Rep.  874. 

^Mersey  Docks  v.  Penhallow,  30  L.  J.  N.  S.  Exch.  329;  Mersey  Docksv.  Oihhs,  L. 
R.  1  H.  L.  93,  35  L.  J.  N.  S.  Exch.  225;  Parnnhyv.  Lancaster  Canal  Co.  11 
Ad.  &  El.  223;  Lo^o  v.  Grand  Trunk  R.  Go.  72  Me.  ZIZ;  Nicker  son  v.  Tirrell, 
127  Mass.  236 ;  Davis  v.  Central  Congregational  Society,  129  Mass.  3G7,  371 ; 
Wendell  V.  Baxter,  12  Gray,  494;  Stratton  v.  Staples^  59  Me.  95;  Campbell 
V.  Portland  Sugar  Co.  62  Me.  552;  Bolch  v.  Smith,  7  Hurl.  &  N.  741;  In- 
demaurv.  Dames,  L.  R.  2  C.  P.  311;  Tobinv.  Portland,  S.  &  P.  R.  Co. 
59  Me.  183;  Gilbert  v.  Nagle,  118  Mass.  278;  Baker  v.  Byrne,  58  Barb. 
438;  Collett  v.  London  <&  N.  W.  R.  Co.  16  Q.  B.  984;  Severy  v.  Nickerson, 
120  Mass.  306;  Zoebisch  v.  Tarbdl,  10  Allen,  385;  Holmes  v.  North  Eastern 
R.  Go.  38  L.  J.  N.  S.  Exch.  161 ;  White  v.  France,  L.  R.  2  C.  P.  Div.  308. 

^Gibbs  V.  Liverpool  Docks,  3  Hurl.  &  N.  164,  176;  Mersey  Docks  v.  Penhallow, 
7  Hurl.  &  N.  329;  Parnaby  v.  Lancaster  Canal  Co.  11  Ad.  &  El.  223; 
GRotirke  v.  Peck,  40  Fed.  Rep.  907;  New  Orleans,  M.  &  G.  R.  Go.\.  Man- 
ning, 82  U.  S.  15  Wall.  649,  21  L.  ed.  220;  Indemaur  v.  Dames,  h.  R.  2  C. 
P.  311;  Lyme  v.  Henley,  3  Barn.  &  Ad.  77. 

'•Davis  V.  Winslow,  51  Me.  64. 

^De  Bxry  Bxya  Merchants  Line  v.  Jacksonville,  T.  &  K.  W.  R.  Go.  40  Fed. 
Rep.  392. 


Chap.  XXIY.]  ■WHAKFAGE    AND    WHARVES.  5G9 

If  the  wharfage  is  extortionate  it  is  for  the  State  to  regulate  it.' 

A  vessel  discharging  at  a  wharf,  which  is  compelled  to  overlap 
the  next  wliarf  and  occupy  the  space  in  front  of  it,  though  not 
tying  to  it  and  not  using  it,  is  still  bound  to  pay  wharfage  at  the 
customary  rate,  for  the  space  occupied,  proportionately  to  the  size 
of  the  vessel." 

In  estimating  a  reasonable  wharfage  charge,  the  fact  that  the 
wharf  might  have  been  greatly  damaged,  or  that  a  storm  was  pre- 
vailing at  the  time,  is  not  to  be  considered.*  A  vessel  whicli 
voluntarily  makes  fast  to  a  wharf,  although  she  did  not  voluntarily 
take  a  position  by  the  wharf,  is  subject  to  an  implied  contract  to 
pay  wharfage.* 

Wharfage  fees  cannot  be  collected  on  an  implied  contract  for 
putting  out  a  safety  line  to  a  private  wharf,  and  for  the  use  of 
which  there  are  no  fixed  charges  or  rates,  and  which  the  public 
has  no  right  to  use." 

If  a  wharf  is  surrendered  to  the  public  without  charge,  then  the 

owner  will  not  be  liable  except  for  such  negligence  in  its  care  as 

will  render  it  a  public  nuisance.* 

^De  Bary  Baya  Merchants  Line  v.  Jacksonville,  T.  &  E.  W.  R.  Co.  40  Fed. 

Rep.  392. 
'^Tke  Wm.  H.  Bnnsfield,  39  Fed.  Rep.  215. 
«  *  ^Heron  v.  The  Marchioness,  40  Fed.  Rep.  330. 
^Kennedy  v.  New  York,  73  N.  Y.  365. 


CHAPTER  XXY. 

EXTINGUISHMENT  OF  EASEMENTS. 

•Sec.  76.  How  Easements  are  Extinguished. 

a.  By  Release. 

b.  By  Merger  in  Union  of  Titles. —  Natural,  Necessary  and 

Apparent  Easements  not  Lost. 

c.  Where  Usefulness  of  Easement  Ceases. 

d.  Exercise  of  Eight  Suspended  by  Superior  Power. 

e.  Renunciation  or  Abandonment  by  Encroachment  on  Easement. 

f.  Abandonment  of  Easement  a  Question  of  Fact  and  Intention. 

g.  Adverse  User  to  Extinguish  Easement. 

h.  Extinguishment  of  Prescriptive  Easement. — Admissions. 

Section  "tG.Sow  Easements  are  Extinguished, 

a.  By  Release. 

Easements  are  extinguislied  by  release,  merger,  necessity,  and 
by  prescription,  renunciation  or  abandonment  shown  by  decisive 
acts.* 

An  easement  is  extinguished  as  matter  of  law,  and  there  is  no 
question  for  the  jury,  where  a  relinquishment  thereof  for  a  good 
consideration:  has  been  followed  by  nonuser  for  more  than  twenty 
years,  during  a  large  portion  of  which  time  a  substituted  easement 
has  been  used,  and  the  servient  estate  has  in  the  mean  time  been 
conveyed  by  warranty  deeds  to  purchasers  having  no  notice  of 
any  claim  of  an  existing  easement.*  Any  act  which  will  lead  oth- 
ers, who  proceed  with  due  caution,  and  upon  reasonable  examina- 
tion, to  invest  their  money  in  good  faith  or  to  treat  the  servient 
estate  as  though  the  servitude  did  not  exist,  and  thus  place  them- 
selves in  a  position  with  respect  to  it  where  the  revival  of  the 
easement  would  practically  amount  to  a  fraud  upon  the  rights 

^Steere  v.  Tiffany,  13  R.  I.  570;  Sanderlin  v.  Baxter,  76  Va.  305;  Anderson, 

Law  Diet.  391. 
^Snell  V.  Levitt,  110  N.  Y.  595,  1  L.  R.  A.  414. 


•Chap.  XXV.]       HOW    EASEMENTS    ARE    EXTINGUISHED.  571 

"they  suppose  they  have  acquired  in  such  estate,  will  be  treated  as 
^  relinquishment  or  release  of  the  easement,  even  without  proof 
of  such  intention  to  release  the  right.' 

While  a  verbal  release  of  an  easement  will  not  be  effective,*  any 
•easement  may  be  released  in  due  form  and  upon  a  sufficient  consid- 
eration.' And  this  result  will  sometimes  follow  an  act,  which  will 
be  held  a  constructive  release,  though  against  the  intent  of  the  hold- 
'Cr  of  the  easement.  Thus,  in  JoJinson  v.  Conant,  64  N.  H.  109,  3 
New  Eng.  Rep.  102,  the  plaintiff,  being  owner  of  a  blacksmith- 
shop  plot,  and  a  right  to  use  water  there  to  be  taken  from  a  cer- 
tain flume,  gained  by  prescription  the  right  to  have  water  from 
some  of  the  wheels  in  the  shop  pass  off  into  the  river  to  the  west 
under  the  flume,  while  the  water  from  other  wheels  by  right 
passed  out  under  the  grist-mill  south  of  the  shop,  of  which  he 
owned  one  undivided  half.  Afterwards,  in  a  deed  of  his  half  of 
the  grist-mill,  the  plaintiff  reserved  "  a  right  of  sluice  or  water- 
course under  the  grist-mill,  for  the  water  privilege  north  of  said 
mill."  The  effect  of  this  deed  was  to  extinguish  the  plaintiff's 
right  to  have  a  discharge  of  water  from  the  blacksmith-shop  privi- 
lege under  the  flume,  although  there  was  never  any  intention  on 
his  part  to  abandon  that  easement. 

It  appears  that  for  the  return  of  water  from  his  wheels  to  the 
river  in  his  enjoyment  of  his  privilege  on  his  blacksmith-shop  lot, 
the  plaintiff  formerly  had  two  easements  in  raceways  running  from 

^Vogler  v.  Geiaa,  51  Md.  407;  Hatch  v.  Bwighf,  17  Mass.  289;  Steerev.  Tiffany, 
13  R.  I.  568;  White  v.  Crawford,  10  Mass.  183;  Perkins  v.  Dunham  3 
Strobh.  L.  224;  Dyer  v.  Sanford,  9  Met.  395;  Emerson  v.  Wilei/,  10  Pick.  310; 
Curtis  V.  Noonan,  10  Allen,  406;  Williams  v.  Nelson,  23  Pick.  141.  147; 
Morse  y.  Copeland,  2  Gray,  302;  Miller  v.  Garlock.  8  Barb.  153;  Poj)e  v. 
Devereaux,  5  Gray,  409;  tlall  v.  Swift,  6  Scott,  167;  King  v.  Murphy,  140 
Mass.  254;  French  v.  Braintree  Mfg.  Co.  23  Pick.  216;  Dyer  v.  Depui 
5  Whart.  bM;  Reg.  v.  Ch&rley,  12  Q.  B.  515;  Farrar  v.  Cooper,  34 
Me.  394;  Arnold  v,  Stevens,  24  Pick.  106;  Toionsend  v.  McDonald,  12 
N.  Y.  381;  Crossley  v.  Lightoioler,  L.  R.  2  Ch.  App.  482;  Pillsbury  v. 
Moore,  44  Me.  154;  Cartioright  v,  Mapleson,  53  N.  Y.  022;  White's  Bank 
V.  Nichols,  64  N.  Y.  65;  Nitzell  v.  Paschall.  3  Rawle,  76,  82;  Jewclt  v.  Jew- 
ett,  16  Barb.  150;  Taylor  v.  Hampton,  4  McCord.  L.  96;  Lawrence  v.  Ohee,  3 
Camp.  514;  Mowry  v.  Sheldon,  2  R.  I;  369;  Hall  v.  McCaughey,  51  Pa.  43; 
Owen  V.  Field.  102  Mass.  114;  Hurd  v.  Curtis,  7  Met.  94,  115;  Wilder  v. 
St.  Paul,  12  Minn.  208;  Veghte  v.  Raritan  Water  Power  Co.  19  N.  J.  Eq. 
156. 

■^Erb  V.  Brown,  69  Pa.  216;  Dyer  v.  Sanford,  9  IMet.  395. 
■^Snell  V.  Levitt,  110  N.  Y.  595, 1  L.  R.  A.  414;  Hamilton  v.  Farrar,  128  Mass. 
492. 


572  IMPOSED   DUTIES,  PERSONAL.  [Part  II, 

that  lot  to  the  river,  one  under  the  grist-mill,  and  the  other  under 
the  flume;  and  he  reserved  the  former  when  he  conveyed  half  of 
the  grist-mill  "  witli  the  first  right  of  water-powei-"  and  "  a  pro- 
portionate right  of  the  flume."  If  the  raceway  under  the  flume 
had  been  in  use  when  he  reserved  the  other,  it  might  have  been 
argued  that  there  was  a  presumption  of  his  intent  to  retain  the- 
right  in  use  at  that  time;  but  as  neither  of  them  was  then  in  use, 
and  neither  had  been  used  for  fifteen  years,  no  presumption  arose- 
from  the  contemporaneous  use  of  the  premises  in  favor  of  an  im- 
plied reservation  of  an  easement  that  would  materially  impair  tlie 
apparent  extent  and  value  of  his  grant.  In  view  of  the  condition 
of  the  blacksmith-shop  lot,  of  which  no  use  had  been  made  for 
fifteen  years,  and  on  which,  during  that  time,  there  had  been  na 
building,  and  no  indication  either  of  any  intended  use,  or  of  any 
necessity  for  two  raceways  if  it  should  ever  be  used  again,  his 
grantees  might  well  understand  that,  as  the  subjection  of  the  grist- 
mill to  one  racewaj^"  easement  for  the  benefit  of  the  vacant  lot  was 
expressly  contained  in  the  deed,  their  right  to  permanently  rebuild 
the  flume  was  not  obstructed  by  another  concerning  which  the 
deed  was  silent.  The  construction  of  the  deed  is  the  ascertain- 
ment of  the  fact  of  the  parties'  intention  from  competent  evidence.^ 
It  was  said  by  the  court  in  Johnson  v.  Conant^  sujjra,  that  in 
whatever  doubt  this  fact  may  be  left  by  the  evidence,  there  is  a. 
preponderance  of  probability  that  the  parties  intended  the  grist- 
mill privilege  should  not  be  burdened  with  two  raceways  for  the 
unoccupied  lot;  and  that  the  one  he  reserved  under  the  mill  was- 
the  only  one  the  plaintiff  was  to  have  across  the  grist-mill  lot.  The 
other  was  extinguished  by  the  deed. 

But  a  grantee's  right  of  drainage  through  a  private  way  acquired 
by  prior  adverse  use  is  not  vacated  by  a  clause  in  the  deed  that  he 
should  have  no  right  of  frontage  on  or  access  to  such  private  way 
on  any  land  except  .the  parcel  conveyed  thereby,  the  clause  being 
construed  as  explanatory  of  the  description  in  the  deed  and  not  as 
releasing  a  right  already  acquired.^ 

Failure  to  record  a  sealed  instrurhent  releasing  an  easement  is  of 

no  importance,  even  as  against  subsequent  purchasers,  where  the 

iSee  Mobile  &  M.  R.   Co.  v.  Jurey,  111  U.  S.  584,  592,  28  L.  ed.  527,  530; 

Hard  v.  Dunsmore,  63  N.  H.  171;   Craicford  v.  Parsons,  63  N.  H.  438. 
^Fiske  V.  Wetmore,  15  R.  1.  366,  5  New  Eng.  Rep.  93. 


Chap.  XXV.]       HOW    EASEMEXTS  ARE    EXTINGUISHED.  573 

execution  of  such  instrument  is  followed  by  acts  denoting  an  un- 
equivocal intention  to  abandon  the  easement,  as  the  instrument  is 
of  importance  only  as  showing,  with  the  other  facts,  an  intention 
to  abandon  the  easement.' 

b.  By  Merger  in  Union  of  Titles— J\''atural,  Xeces- 
sary  and  Apparent  Easements  not  Lost. 

When  the  owner  of  an  estate  enjoys  an  easement  over  anotlier 
.property,  and  acquires  title  to  the  latter,  the  easement  is  thereby 
extinguished.''  But  if  the  title  to  one  estate  fail,  the  easement  will 
revive  to  the  holder  of  the  other  estate,  in  whose  hands  the  estate 
was  lost.'  An  estate  mortgaged,  when  the  mortgage  is  discharo-ed 
•or  the  estate  redeemed,  is  freed  from  any  intervening  easement. 
And  upon  the  foreclosure  of  the  mortgage,  all  easements  created 
subsequent  to  the  date  of  the  instrument  by  the  moi'tgagor  or 
those  holding  under  his  title  are  released." 

But  in  order  that  the  unity  of  the  title  and  possession  of  the 
dominant  and  servient  estates  may  e.xtinguish  an  easement,  the 
ownership  of  the  two  estates  must  be  equal  in  extent,  validity, 
quality  and  all  other  circumstances  of  right.  Uniting  an  estate 
in  fee  in  land,  and  a  chattel  interest,  as  a  lease  for  ninetv-nine 
years,  will  not  operate  as  an  extinguishment.^  JSTor  will  the  own- 
ership in  reversion  of  different  properties  by  one  person  extinguish 
an  easement  and  servitude  between  them*  If  one  is  held  in  sev- 
eralty and  the  other  only  as  to  a  fractional  part  thereof  by  the 

^Snellv.  LeviU,  110  N.  T.  595,  1  L.  R.  A.  414. 

^Eowell  V.  Esten.  71  Tex.  690;  Wilder  v.  Wheeldon,  56  Vt.  344;  Plimpton  v. 

Converse,  42  Vt.  712;  Canham  v.    Fisk,  2  Cromp.   &  J.  126;   llohbins  v. 

Barnes,  Hob.  131;  Sury  v.  Pigot,  Popli.  166;  Packer  v.  Welsted,  2  Sid.  39; 

Atwaier  v.  Bodjish,  11  Gray,  152;  Hancock  v.  Wentworth,   5  j\Iet.  446; 

Grant  v.  Chase,   17  Mass.  443;  Kiefferw.  Imlioff,  26  Pa.  438;   Coleman's 

Appeal,  62  Pa.  274;  Oayetty  v.  Bethune,  14  Mass.  53;  Wairen  v.  Blake,  54 

Me.  281. 
'Tyler  v.  Hammond,  11  Pick.  193. 
^Curtis  V.  Francis,  9  Cush.  437;  Ritf/er  v.  Parker,   8  Cusb.  145;  Ballard  v. 

Ballardvale  Co.  5  Gray,  471.     See  Heartt  v.  Kruger,  121  N.  Y.  386  9  L. 

R.  A.  135. 

*Atalanta  Mills  v.  Mason,  120  Mass.  244;  Ex  parte  Gay,  5  Mass.  419;  Chap- 
many.  Gray,  15  Mass.  445;  Brewster  v.  Hill,  1  N.  H.  350;  Dority  v.  Dun- 
ning, 1%  },le.  ^^\,^'i!{  aw  ling.  Rep.  41;  Hollenbeck  v.  McDo)iald,  113 
Mass.  249;  Thomas  v.  Thomas,  2  Cromp.  M.  &  R.  34. 

*Hinchliffe  v.  Kinnoul,  5  Bing.  N.  C.  1. 


574  IMPOSED  DUTIES,  PERSONAL.  [Part  !!► 

same  person  there  will  be  no  extingnisliment  of  snch  easement/ 
Thus  it  was  held  bj  Abinger,  C.  B.,  in  the  English  Court  of  Ex- 
chequer in  Thomas  v.  Thomas,  2  Cromp.  M.  &  R.  34,  in  which 
case  one  estate  was  held  in  fee  and  the  other  for  a  term  of  500' 
years,  that  unity  of  possession  did  not  extinguish  the  easement, 
but  only  suspended  it  during  the  unity  of  possession;  and  upon 
parting  with  the  premises  to  different  parties,  the  right  revived.* 
An  easement  may  exist  in  favor  of  several  joint  owners,  although 
one  of  their  number  own  the  servient  estate.^  Where  the  act  of 
the  owner  while  in  possession  of  two  properties  has  changed  the 
existing  conditions  or  the  extent  of  the  easement  and  servitude,, 
the  severance  of  the  title  will  not  in  many  cases  revive  the  ease- 
ment to  its  full  extent,  unless  it  be  so  stated  in  the  grant.'* 

Although  it  is  said  in  general  terms  that  an  easement  suspended 
by  merger  of  two  estates  in  one  title  will  not  pass  as  appurtenant 
to  the  premises  granted  on  severance  of  the  title,*  yet  a  natural 
easemegit  will  be  revived  and  pass  with  the  grant.'  This  is  also- 
true  of  an  easement  which  arises  of  necessity,'  and  of  a  continu- 
ous and  apparent  easement.* 

c.  Where  Usefulness  of  Easement  Ceases. 

Where  the  necessity  or  usefulness  of  the  easement  has  ceased,. 

^Ritger  v.  Parker,  8  Gush.  147;  Imnney  v.  Stacker,  L.  R.   1  Ch.   App.  396;. 
Bradley  Fish  Go.  v.  Dudley,  37  Conu.  136. 

'See  Reed  v.  West,  16  Gray,  284;  Atalanta  Mills  v.  Mason,  120  Mass.  251; 
Tucker  v.  Jewett,  11  Conn.  331;  Canham  v.  Fisk,  2  Cromp.  »&  J.  126,  and 
note;  James  v.  Plants,  4  Ad.  &E1.  749;  Tyler  v.  Hammond,  11  Pick.  193, 
230;  Manning  v.  Smith,  6  Conn.  389;  Hazard  v.  Robinson,  3  Mason,  373; 
Pearce  v.  McGleneghan,  5  Rich.  L.  178;  Kieffer  v.  Imhoff,  26  Pa.  438. 

^Bradley  Fish  Co.  v.  Dudley,  37  Conn.  136. 

^Nicholas  V.  Chamberlain,  Cro.  Jac.  131;  Sui'y  v.  Pigot,  Poph.  166;  Washb. 
Easem.  (4tli  ed.)  689;  Hazard  v.  Robinson,  3  Mason,  273. 

KJamesv.  Plant,  4:  M.  &E1.  749. 

^Dunklee  v.  Wilton  R.  Co.  4  Fost.  489. 

"'Grants.  Chase,  17 Mass.  443. 

'^SeibertY.  Levan,  8  Pa.  383;  Leonard  v.  Leonard,  2  Allen,  543;  Hazard  v. 
Robin>ion,  3  Mason,  173;  Zellv.  First  Universalist  Society,  119  Pa.  390,  12- 
Cent.  Rep.  14S;  Glave  v.  Harding,  3  Hurl.  &  H.  937;  Pyer  v.  Carter,  1 
Hurl.  &N.  916;  Phillips  v.  Phillips,  48  Pa.  178.  But  see  Partridge  v. 
Gilbert,  15  N.  Y.  601;  Hoffman  v.  Kaher,  57  Miss.  746;  and  ante  p.  316,. 
Destruction  of  Party-  Wall.  See  also  wiiat  has  been  already  said  as  to  con- 
tinous  and  apparent  easements,  ante,  pp.  341-343. 


Chap.  XXY.]     HOW  easements  are  extinguished.  575 

the  easement  will  be  extinguished.'  If  buildings  to  which  the 
way  gave  access  are  suffered  to  fall  into  decay  or  disuse  or  are  de- 
stroyed or  removed,  the  way  will  be  lost.'  Where  the  purpose 
for  which  the  easement  was  created  has  ceased,  the  easement  can- 
not be  continued  for  a  new  use.'  But  a  public  easement  will  not 
supersede  a  private  easement,  although  it  render  the  latter  no 
longer  necessary.* 

The  right,  however,  to  use  an  alley  which  was  a  continuous  and 
apparent  way,  and  was  the  only  approach  from  the  highway  to  the 
land  sold,  is  not  extinguished  by  a  subsequent  purchase  by  the 
grantee  of  another  lot,  over  which  there  is  a  passage  to  the  high- 
way, for  the  right  to  the  use  of  the  alley  passed,  not  as  a  way  of 
necessity,  but  as  an  appurtenance  to  the  lot.*  But  upon  the  con- 
veyance of  a  lot  with  the  right  to  use  an  underground  drain,  run- 
ning through  other  premises  owned  by  the  grantor,  the  right  of 
the  grantor  to  use  the  drain  on  adjoining  lots  owned,  by  him  is 
lost  unless  expressly  reserved  by  the  deed.' 

d.  Exercise  of  Ri^ht  Suspended  hy  Superior 

Power. 

Where  the  right  is  suspended  by  what  is  called  the  act  of  God, 
as  by  the  drying  up  of  a  spring,  it  will  revive  again  on  the  reflow 
of  the  water,  but  if  the  cause  be  the  voluntary  act  of  the  party, 
knowing  his  rights  and  intending  the  result,  the  removal  of  the 
obstacle  by  a  superior  force  will  not  revive  his  easement/  And 
if  the  owner,  when  he  might  restore  his  easement,  lost  by  the  in- 

^Heartt  v.  Zrw^rer,  121  N.  Y.  386,9  L.  R.  A.  \Z^; Holmes  y.  Goring,  2 
Bing.  76;  Partridge  v.  Gilbert,  15  N.  Y.  601;  Ogdenv.  Jennings,  63  N.  Y. 
531;  Mussey  v.  Proprietors  Union  Wharf,  41  Me.  Z^;ante,  p.  216,  Destruc- 
tion of  Party-Wall. 

^Hancock  v.  Wentworth,  5  Met.  446;  Gayetty  v.  Bethune,  14  Mass.  4d;Brond- 
age  v.  Warner,  2  Hill,  145. 

^National  Manure  Co.  v.  Donald,  4  Hurl.  &  N.  8;  Central  Wharf  Co.  v.  In- 
dia Wharf  123  Mass.  567. 

*Hastings  v.  Livermore.  15  Gray,  13;  Allen  v.  Onnond,  8  East,  4.  See 
Party-  Wall,  ante,  p.  201  et  seq. 

^Zell  V.  First  Universalist  Soc.  119  Pa.  390,  12  Cent.  Rep.  148. 
*Munson  v.  Reid,  46  Hun,  399. 

''Taylor  v.  Hampton,  4t.  McCord,  L.  90;  Whites  Bank  v.  Nichols,  64  N. 
Y.05. 


576  BIPOSED   DUTIES,  PERSONAL.  [Part  II. 

terposition  of  Providence,  permit  another  to  avail  himself  of  the 
easement  and  enjoy  it,  he  will  be  held  to  have  abandoned  it.' 

Where  an  alley  between  two  houses  had  been  used  for  over 
forty  years  by  the  adjoining  owners  for  access  to  the  rear  of  their 
houses  and  to  the  lots  behind  and  belonging  thereto,  and  both 
houses  were  destroyed  by  fire,  the  easement  in  the  alley  was  not 
thereby  lost,  and  whether  one  of  the  parties  had  forfeited  her  right 
thereto  by  placing  the  foundation  of  her  house  in  the  alley,  in 
rebuilding,  the  evidence  being  conflicting,  should  be  determined 
by  an  issue  at  law  before  she  could  enjoin  the  other  party  from 
appropriating  the  part  of  the  alley  next  to  his  lot  in  rebuilding.^ 
Where  a  deed  reserved  a  way  over  a  lot  to  a  barn  standing  on  an 
adjoining  lot,  the  easement  was  not  lost  by  the  destruction  of  the 
barn  subsequently.' 

€.  Renunciation   or  Abandonment  hy  Encroach- 
ment  on  Easement, 

The  abuse  of  a  prescriptive  right  does  not  create  a  forfeiture  of 
the  right,*  But  where  the  encroachment  tends  to  destroy  the 
easement  it  will  have  this  effect.  Thus,  the  encroachment  by  one 
party  upon  a  way  held  in  common  by  building  part  of  the  wall  of 
a  house  upon  a  portion  of  it,  and  inclosing  another  portion  within 
a  fence,  works  an  extinguishment  by  operation  of  law,  especially 
where  the  other  party  sells  his  interest  after  such  acts  done,  and 
the  purchaser  acquiesces  in  and  confirms  what  has  been  done.* 

Any  right  may  be  destroyed,  not  only  by  an  act  of  a  party  pos- 
itively destructive  of  the  right,  but  by  an  act  incompatible  with 
the  nature  or  exercise  of  it.' 

An  easement  established  by  grant  may  be  lost  by  nonuser  con- 
sequent upon  something  which  prevents  user  and  is  utterly  incon- 

^  Thomas  v.  Hill,  31  Me.  252;  Dunkleev.  Wilton  B.  Co.  4  Fost.  489. 

^Chew  V.  Cook,  39  N.  J.  Eq.  396,  note. 

^Bangs  v.  Parker,  71  Me.  458. 

*Masonic  Temple  Asho.  v.  Harris,  79  Me.  250,  4  New  Eng.  Kep.  407;  Mendell 
V.  Delano,  7  Met.  176. 

^Corning  v.  Oould,  16  Wend.  531.  See  Steere  v.  Tiffany,  13  R.  I.  568;  Dill- 
man  V.  Hoffman,  38  Wis.  559;  Partridge  v.  Gilbert,  15  N.  Y.  601;  King 
V.  Murphy,  140  Mass.  254,  1  New  Eng.  Rep.  434. 

^TayW  V.  Hampton,  4  McCord,  L.  96-103. 


CLap.  XXV,]     now  easements  are  extinguished.  577 

sistent  with  its  enjoyment/  "Where  the  owner  of  the  doniinaiit 
estate  closes  liis  access  to  a  way  over  adjoining  private  premises, 
with  the  intention  of  abandoning  the  way,  such  act  operates  as  a 
present  abandonment  of  the  easement,  which  thereby  ceases  to  be 
appurtenant  to  the  estate  and  does  not  pass  to  a  subsequent  grantee 
of  the  estate  under  a  deed  which  does  not  mention  sucli  way." 
If  he  permit  another  to  close  the  way  without  protest,  having  the 
means  of  opposing  it,  the  easement  will  be  lost.' 

Building  over  an  alley  between  two  houses  is  not  usually  an 
abandonment  of  the  easements  therein.'  The  owner  of  an  ad- 
joining tenement,  who  had  the  fee  in  the  soil  over  which  was  a 
way,  built  over  the  way  at  an  elevation  of  eleven  feet;  the  court 
held  that  it  was  lawful  for  him  to  do  so.*  But  building  in  an 
alley  or  on  a  part  thereof  is  an  abandonment. ' 

f.  Abandomnent  of  Easement  a  Question  of  Fact 
and  Intention. 

When  the  question  of  the  extinguishment  or  the  abandonment 
of  an  easement  otherwise  than  by  deed  enters  into  the  case  the 
following  principles  are  established  on  authority :  (1)  It  is  a  ques- 
tion of  fact  and  intention.  (2)  The  declarations  and  acts  of  the 
owner  of  the  dominant  estate  are  competent  evidence.     (3)  Time 

^ Barnes  Y.  Lloyd,  112  Mass.  231;  White  v.  Oraicford,  10  Mass.  183. 

^Eing  v.  Murphy,  140  Mass.  254,  1  New  Eng.  Rep.  434. 

^Arnold  v.  Corniman,  50  Pa.  361. 

^Stevenson  v.  Stewart,  7  Phila.  293;  Richardson  v.  Pond,  15   Gray,  387;  Ger- 

rish  V.  Shaituck,  132  Mass.  235;  Atkins  v.  Bordman,  20  Pick.  291,  2  ]\Iet. 

457;  Beecher  v.  People,  38  Mich.  289.     See  Bowling  v.  Henningn,  20  Md. 

179;  Kean  v.  AscJi,  27  N.  J.  L.  57;  Grove  v.  Ft.  Wayne,  45  lud.  429;  Eane 

V.  Bolton,  36  N.  J.  Eq.  21. 

^Gerrish  v.  Shattuck,  132  Mass.  235.  See  also  Atkins  v.  Bordman,  2  Met. 
457. 

*  Corning  y.  Gould,  16  Wend.  531;  Erehl  v.  BurriU,  L.  R.  7  Cii.  Div.  551; 
Allen  V.  Gomme,  11  Ad.  &  El.  759;  Voglerv.  Gci,is,  51  Md.  407;  Steere  v. 
Tiffany,  13  R.  I.  568;  Ball  v.  McCaughey,  51  Pa.  43;  Billman  v.  ILffiuan, 
38  Wis.  559.  See  Bowen  v.  Team,  6  Rich.  L.  298;  Uayford  v.  iSjwLsfieid, 
100  Mass.  491;  Bodge  y.  Stacy,  39  Vt.  558;  Eirkpatrick  v.  Broicn,  59  Ga. 
450;  Carlin  v.  Paul,  11  Mo.  32;  Hacke's  Appeal,  101  Pa.  245;  Taylor  v. 
"  Hampton,  4  McCord,  L.  96;  Craven  v.  Rose.  3  Rich.  L.  72;  Henry  v.  Eoch, 
22  Am.  L.  Reg.  N.  S.  394;  Ebnery.  Eatichter,  19  Pa.  19;  Lattimery.  Liver- 
more,  72  N.  Y.  174;  Arnold  v.  Cornman,  50  Pa.  361;  Smith  v.  Winaia,  53 
N.  H.  112. 

37 


57b  IMPOSED   DUTIES,  PERSONAL.  [Part   11. 

is  not  a  necessary  element.  (4)  The  surrounding  circumstances 
and  conditions  are  all  to  be  considered. ' 

As  an  easement  acquired  by  deed  cannot  be  extinguished  by 
nonuser,  a  fortiori  it  cannot  be  modified  by  using  only  for  one 
purpose.*  The  presumption  is  that  a  man  intends  to  claim  and 
not  to  abandon  his  rights,  and  this  state  of  his  intention  is  not 
negatived  by  his  failure  constantly  to  exercise  in  actual  enjoyment 
all  the  rights  he  possesses.^  Nonuser,  to  destroy  an  easement,  un- 
less there  be  an  adverse  user  by  the  owner  of  the  servient  estate, 
must  be  accompanied  with  decided  acts  showing  intention  to 
abandon.''  In  some  cases  the  court  has  refused,  where  one  way 
has  been  substituted  for  another,  but  no  new  easement  had  been 
acquired  by  prescription  in  the  substituted  way,  to  hold  the  sub- 
stitution as  an  abandonment  of  the  old  easement.^  Indeed,  the 
statement  of  an  intention  to  abandon  an  easement,  if  communi- 
cated to  and  acted  upon  by  another,  will  upon  such  action  destroy 
the  easement."  But  evidence  of  an  executed  oral  agreement  to 
substitute  a  difierent  way  is  com^Detent  evidence  of  the  surrender 
of  the  old  way. ' 

"Where  a  party  relinquishes  the  enjoyment  of  an  easement  or 
servitude,  it  lies  with  him  to  show  an  intention  to  resume  the  use 
of  it  within  a  reasonable  time;'  and  where  there  are  no  circum- 
stances intimating  the  suspension  to  be  temporary  only,  a  bona  fide 
purchaser  will  be  protected  in  the  enjoyment  of  the  property  as 
it  appeared  at  the  time  of  his  purchase.'     But  a  right  of  way  is 

^King  v.  Murphy,  140  Mass.  254,  1  New  Eng.  Rep.  434;  Pope  v.  Dewreuz,  5 

Gray,  409;  Warhauer  v.  Randall,  109  Mass.  586;  Dyer  v.  San  ford,  9  Met. 

395;  Eeg.  v.  Charley,  12  Q.  B.  515;  Cook  v.  Mayor,  L,  R.  6   Eq.   177-179. 
^  Hay  ford  v,  SpoJcesfield,  100  Mass.  491;  Barnes  v.  Lloyd,  112  Mass.  224. 
^Eolt  V.  Sargent,  15  Gray,  97;  Sargent  v.  Hubbard,  102  Mass.  380. 
*mdy  V.  Chase,  140  Mass.  471,  1  New  Eng.  Rep.  57;  Willeyv.  Norfolk  8.  R. 

Co.  96  N.  C.  408;  Crain  v.  Fox,  16  Barb.  184;  Dreioett  v.  Sheard,  7  Oar.  & 

P.  405;  Liggins  v.  Inge,  7  Biag.  682,  per  Tiadal,  Ch.  J.;  Dyer  v.  Sanford, 

9  Met.  395. 
^Lovell  V.  Smith,  3  0.  B.  N.  S.   120;    Wright  v.  Freeman,  5  Har.  &  J.  467, 

478;  Hale  v.  Oldroyd,  14  Mees.  &  W.  789. 
^French  V.  Braintree  Mfg.  Co.   23  Pick.  216;   Liggins  v.  Inge,  7  Bing.  682. 

Examine  Williams  v.  NeUon,  23  Pick.  141. 
"^Pope  V.  Demreux,  5  Gray,  409. 
^Moore  v.  Rawson,  3  Bar  a.  &  0.  332;  Vogler  v.  Geiss,  51  Md.  407;  Hayford 

V.  Spokesfield,  100  Mass.  491;  Dyer  v.  Sanford,  9  Met.  395;  Hoffman  v. 

Savage,  15  iMass.  130. 
^Corning  v.  Gould,  16  Wend.  531. 


Chap.  XXY.]       HOW  EASEMENTS  ARE  EXTINGUISHED.  579 

not  extinguished  by  the  habitual  use  by  its  owner  of  anotlier  way 
equally  convenient,  instead  of  it,  unless  there  is  an  intentional 
abandonment  of  the  former  way,  and  such  intention  will  not  be 
implied  from  the  use.'  An  abandonment  of  right  of  way  is  more 
readily  presumed  where  it  is  for  the  public  benefit  rather  than 
private  use/ 

Where  the  owner  of  an  ancient  warehouse  filled  the  windows 
on  one  side  from  the  interior  with  mortar  and  stone,  leaving  the 
iron  bars  on  the  exterior,  marking  the  location  of  the  windows, 
and  nineteen  years  thereafter,  the  purchaser  of  the  adjoining  land, 
preparatory  to  building,  erected  a  frame  against  the  closed  spaces, 
in  an  action  against  such  purchaser  for  the  trespass,  it  was  submitted 
to  the  jury  to  determine  whether  the  owner  of  the  warehouse  had 
manifested  such  an  appearance  of  having  abandoned  his  right  as 
to  induce  the  purchaser  of  the  lot  to  alter  his  position  in  the  rea- 
sonable belief  that  the  right  was  abandoned.  This  was  held  on  re- 
view a  proper  action  by  the  court,  and  the  finding  for  the  plaintiff 
was  treated  as  a  conclusion  by  the  jury  that  the  plaintiff  did  not 
so  close  up  his  lights  as  to  lead  the  defendant  to  incur  expense  or 
loss  on  the  reasonable  belief  that  they  had  been  permanently 
abandoned,  nor  so  as  to  manifest  an  intention  of  permanently 
abandoning  the  use  of  them.' 

That  a  purchaser  of  a  dominant  estate  bid  at  a  sale  of  the  serv- 
ient estate  covered  by  a  right  of  way  is  not  evidence  that  he  does 
not  claim  the  right  to  use  it.* 

g.  Adverse  User  to  Extinguish  Easement. 

Mere  nonuser  for  twenty  years  affords  a  presumption  of  ex- 
tinguishment, though  not  a  very  strong  one,  in  a  case  unaided  by 
circumstances.  A  right  reserved  of  cutting  timber  and  of  grazing 
in  the  woods  "  not  appropriated  or  fenced  in"  is  no  more  than  a 
right  of  common,  and  that  right  is  utterly  inconsistent  with  the 
exercise  of  the  right  of  inclosure.     The  long  disuse  of  this  right 

^Jamaica  Pond  Aqueduct  Corp.  v.  Chandler,  121  Mass.  3. 
Henderson  V.  Cent.  P(ifis.  R.  Co.  21  Fed.  Rep.  358. 
^Stokoe  V.  Singers,  8  El.  &  Bl.  31-39.     See  Parkins  v.  Dunham,  3  Strobh. 

L.  234;  Cookv.  Mayor,  L.  R.  6  Eq.   177;  Farrar  v.   Cooper,  34  Me.  31)4, 

400. 
*Zell  V.  First  Universalist  Sac.  119  Pa.  390,  12  Cent.  Rep.  148. 


580  IMPOSED    DUTIES,  PERSONAL.  [Part    II. 

is  evidence  of  the  sense  of  the  parties  that  the  right  ceased  when 
the  woods  were  fenced  in,  and  a  right  of  this  kind,  as  well  as 
other  rights,  may  be  lost  by  negligence  and  disuse.  This  was  so 
said  in  GatewanVs  Case^  6  Coke,  59  h.  It  will  let  in  the  presump- 
tion of  a  release  or  other  discharge,  and  such  presumptions  are  to 
be  favorably  received  in  opposition  to  dormant  claims,  because 
they  conduce  to  the  quiet  of  titles  and  the  security  of  estates.' 

Mere  nonuser  for  even  twenty  years  is  not  sufficient  in  it- 
self merely  when  the  easement  is  by  grantf  but  in  the  event  of 
nonuser  for  even  a  shorter  period,  if  there  has  been  in  the 
mean  time  some  act  done  in  good  faith,  by  the  owner  of  the  land 
charged  with  the  easement,  inconsistent  with  or  adverse  to  the 
right,  and  which  would  be  an  injury  to  him  if  the  easement  was 
continued,  an  extinguishment  will  be  presumed.^  Where  the 
easement  was  acquired  by  grant,  there  must  be  an  adverse  use  by 
the  servient  estate  for  the  period  necessary  to  create  a  prescrip- 
tive right  in  connection  with  the  nonuser.* 

Prescription  does  not  run  against  the  exercise  of  a  servitude  in 
favor  of  one  who  resisted  and  prevented  its  exercise.*  Abandon- 
ment of  a  drain,  or  disuse  of  it,  for  any  time,  breaks  the  continu- 


^Ten  Broeck  v.  Livingston,  1  Johns.  Ch.  357,  1  N.  Y.  Ch.  L.  ed.  170. 

^Day  V.  Walden,  46  Mich.  575;  Arnold  v.  Slevens,  24  Pick.  106;  Jewett  v. 
Jewett,  16  Barb.  150. 

^Siiell  V.  Levitt,  110  N.  Y.  595,  1  L.  R.  A.  414.  See  3  Kent,  Com.  (11th  ed.) 
*448;  Wright  v.  Freeman,,  5  Har.  &  J.  477;  Emerson  v.  Wiley,  10  Pick. 
310;  Teakle  v.  Wace,  2  Wiiart.  123;  Knight  v.  Heaton,  22  Vt.  480;  Peoria 
V.  Johnston,  56111.  51;  Champlinw.  Morgan,  20  111.  182;  Lewiston  v.  Proc- 
tor, 27  111.  418;  Littler  v.  Lincoln.  106  111.  b53;  Winnetka  v.  Proutij,  107 
111.  225;  Smith  v.  Lavgewald.  140  Mass.  205,  1  New  Eng.  Rep.  449;  Jen- 
nison  v.  Walker,  11  Gray,  423;  Owen  v.  Field,  102  Mass.  90;  Barnes  v. 
Lloyd,  112  Mass.  224;  Chandler  v.  Jamaica  Pond  Aqueduct  Corjj.  125  Mass. 
544;  Crossley\.  Lightowler,  L.  R.  2  Ch.  App.  478;  Canny  v.  Andrews,  128 
Mass.  155. 

*Curran  v.  Louisville,  83  Ky.  628;  Snell  v.  Levitt,  39  Hun,  227;  Lendeman  v. 
Lindsay,  69  Pa.  100;  Bomhaugh  v.  Miller,  82  Pa.  203;  Chandler  v.  Jamaica 
Pond  Aqueduct  Coi'p. 125  Mass.  544 :  RieJde  v.  Ueulings,^S  N.  J.  Eq.  20;  Wig- 
gins V.  McCleary,  39  N.  Y.  346;  Smiles  v.  Hastings,  24  Barb.  44;  Jennison 
V.  Walker,  11  Gray,  423;  Erb  v.  Brown,  69  Pa.  216;  Day  v.  Walden,  46 
Mich.  575;  Pope  v.  CRara,  48  N.  Y.  452;  Farrar  v.  Cooper,  34  Me.  394; 
Arnold  v.  Stevens,  24  Pick.  106;  Bannon  v.  Angier,  2  Allen,  128;  Buiz  v. 
Ihrie,  1  Rawle,  2i8;  Owen  v.  B'ield,  102  Mass.  90;  Devens,  J.,  in  Smith  v. 
Langewald,  140  Mass.  205,  1  New  Eng.  Rep.  449;  Teakle  v.  Aace,  2 
Wluirt.  123;  Shields  v.  Arndt,  4  N.  J.  Eq.  434;  Knight  v.  Beaton,  22  Vt. 
480. 

''Sarpy  v.  Hymel,  40  La.  Ann.  425. 


Chap.  XXY.]     HOW  easements  are  extinguished.  581 

ity  of  au  adverse  user,  so  as  to  prevent  acquiring  a  right  thereby 
to  flow  tlie  land  of  another.' 

Interruptions  of  the  use  of  an  easement,  wlien  brought  to  the 
knowledge  of  the  claimant,  rebut  the  presumption  of  a  grant,  un- 
less such  interruptions  are  promptly  contested  by  the  claimant 
and  the  easement  re-asserted."  But  intei-ruptions  of  the  use  after 
the  lapse  of  the  time  which  raises  the  presumption  of  a  grant  of 
the  easement  furnish  evidence  of,  but  do  not  constitute  of  them- 
selves, an  abandomnent.' 

.  A  simple  obstruction  or  obstacle  to  the  use  of  an  easement,  in- 
terposed by  the  owner  of  the  servient  estate,  will  not  be  sufficient 
to  extinguish  the  easement,  although  submitted  to  by  the  holder 
of  the  easement,  unless  continued  for  twenty  years.  Unless  there 
be  something  in  the  terms  of  the  grant  creating  the  easement,  or 
in  the  nature  of  the  easement  itself,  which  requires  its  present  ex- 
ercise, there  is  no  default  in  not  using  it,  and  the  Statute  cannot 
commence  to  run  until  such  default,  and  it  is  only  upon  the  theory 
that  the  obstacle  interposed  challenges  immediate  action,  that  the 
Statute  is  supposed  then  to  commence  its  course.*  But  this  must 
depend  largely  upon  the  nature  of  the  easement,  and  of  the  inter- 
posed obstacles  and  their  prominence  and  apparent  purpose.  It  is 
not  interruption  of  jDossession,  but  interruption  of  right,  which 
will  bar  the  use.* 

h.  Extinguishment   of  Prescriptive   Easement.— 

Admissions. 

A  right  acquired  by  prescription  is  in  all  respects  as  perfect  as 
one  acquired  by  grant.  It  has  the  same  validity  and  force,"  and 
its  owner  cannot  be  devested  of  it  by  his  words  or  acknowledg- 
ments.    But  as  to  an  easement  not  yet  acquired,  an  asking  of  per- 

'  Chapel  V.  Smith,  80  Mich.  100. 

■'  ^Willey  V.  Jfiorfolk  Southern  R.  Co.  96  N.  C.  408., 

^Butz  V.  Ihrie,  1  Rawle,  218,  222;  MtzeU  v.  Paachall,  3  Rawle,  76,  82;  7eakle 

V.  Nace,  2  Wbart.  123. 
'"Arnold  v.  Stevens,  24 Pick.  IQQ^Bowen-v.  Team,  6Ricii.  L.  298,  305; 2  Smith, 

Lead.  Cas.  (5th  Am.  ed.)  211;  Uayford  v.  Spokesfield,  100  Mass.  491;  Ward 

V.  Ward,  7  Exch.  888;  Co.  Litt.  114  d;  Hatdi  v.  Dwight,  17  Mass.  289; 

Williams  v.  Nelson,  23  Pick.  141. 
'Arbuckle  v.  Ward,  29  Vt.  43. 


582  IMPOSED   DUTIES,  PERSONAL.  [Part   II. 

mission  will  interrupt  the  acquiring  of  the  right  and  rebut  the 
presumption  of  a  grant.'  The  sole  ground  of  such  evidence  being 
received  to  rebut  the  claim  of  a  prescriptive  right  is  that  it  is  in- 
consistent with  such  claim/ 

In  an  action  for  flowing  the  plaintiff's  land,  the  defendant 
claimed  a  prescriptive  right;  and  it  apjDeared  that  several  years 
after  the  permanent  structure  of  his  dam  had  been  built,  he  used 
a  flashboard  on  it  for  the  purpose  of  storing  water;  that  the  plain- 
tiff's evidence  tended  to  prove  that  defendant,  within  fifteen  years, 
asked  a  former  owner  of  the  land  for  a  license  to  raise  the  dam; 
that  one  question  was  whether  the  conversation  as  to  the  license 
related  to  the  main  dam  or  the  flashboard;  that  the  court  in- 
structed the  jury  that  if  it  related  to  the  dam,  and  that  if  the  de- 
fendant had  gained  a  prescriptive  right  as  to  this,  he  could  not  be 
devested  of  it  by  what  he  might  say;  but  if  it  related  to  the  flash- 
board,  which  was  first  put  on  only  thirteen  years  before,  that  it 
was  an  acknowledgment  of  the  superior  right  of  the  owner  of  the 
servient  estate  and  would  rebut  the  presumption  of  a  grant;  that 
the  jury  returned  a  verdict  for  the  plaintiff,  and,  on  inquiry  by 
the  court,  stated  that  the  damages  were  given  in  consequence  of 
the  flashboard.  Held,  that  the  result  was  logical  and  the  verdict 
valid. " 

>  Weed  V.  Keenan,  60  Vt.  74,  6  NewEne.  Rep.  250;  Mitchell  v.  Walker,  2  Aik. 
266;  Arbuckle  v.  Ward,  29  Vt.  43;  2  Washb.  Real  Prop.  321,  325;  Watki?is 
V.  Peck,  13  N.  H.  360;  Medford  First  Parish  v.  Pi-att,  4  Pick.  222;  Flora 
V.  Garbeau,  38  N.  Y.  Ill;  Smith  v.  Miller,  11  Gra)\  148;  Sargent  v.  Bal- 
lard, 9  Pick.  251-255;  Wilder  v.  Wheeldon,  56  Vt.  344;  Albee  v.  Huntley, 
56  Vt.  457;  Willey  v.  Hunter,  57  Vt.  479;  Partch  v.  Spooner,  57  Vt.  583. 

^Watkins  v.  Peck,  13  N.  H.  376;  Hong  W.Wallace,  28  N.  H.  547;  Arbuckle  v. 
Ward,  29  Vt.  43;  Tracy  v.  Atherton,  36  Vt.  503. 

*Weed  V.  Keenan,  60  Vt.  74,  6  New  Eug,  Rep.  251. 


PART  III. 

PERSONAL  PROPERTY,  DUTY  OF  CARE  IN  ITS  CONTROL;  FIRE. 


CHAPTER  XXYI. 

DOMESTIC  ANIMALS. 

Sec.  77.   Care  Required  of  Owners  of  Machinery. 
Sec.  78.  Duties  Imposed  iqjon  the  Owners  of  Animals. 

a.  At  Common  Law  the  Owner  must  Keep  His   Cattle  on  His 

Own  Land. — Fences. 

b.  Statutes  Requiring  Land  Owner  to  Fence  aqainst  Trespass- 

ing Domestic  Animals. 

c.  Fe7ice  must  not  be  a  Soiirce  of  Danger  to  Cattle  in  Adjoining 

Field  or  Highway. 

d.  County  Commissioners  or  Local  Authorities  may  be  Enq^oiu- 

ered  to  Authorize  Cattle  to  Run  at  Large. — Driving  off 
Trespassing  Animals. 
6.  Impounding  Domestic  Animals. 

f.  Authority  to  Impound  and  Sell  Strayed  Domestic  Animals. 

g.  Rights  of  Owner  of  Impounded  Animals. 

h.  Municipal  Ordinances  Regarding  Strayed  Domestic  Animals. 
i.   Damages  for  Trespass  of  Animals  Impounded. 

Section  11.— Care  Required  of  Owners  of  Machinery. 

The  rule  of  liability  in  the  use  of  one's  property,  whether  realty 
or  personalty,  is  the  same/  and  the  nser  of  either  in  a  manner  for 
which  the  property  is  not  appropriate  imposes  no  more  liability  in 
the  one  case  than  in  the  other.^ 

The  general  duty  rests  upon  one  employing  machinery  to  see  to 

it  that  it  is  reasonably  suflScient  for  the  service  intended."   Xeglect 

of  fencing  dangerous  machinery,  misleading  one  into  the  belief 

^Reedie  v.  London  &  N.  W.  R  Co.  4  Exch.  344. 

"^Faiijoy  V.  Scalen,  29  Cal.  243. 

^Cowley  V.  Sunderland,  6  Hurl.  &  N.  5G5. 


58-i  IMPOSED   DUTIES,  PERSONAL.  [Part    III, 

that  it  might  be  safely  approached,  would  be  the  foundation  of  a 
right  of  action  where  injury  resulted.'  Evidence  to  show  that  it 
is  customary  in  other  mills  to  cover  gearing  of  the  kind  in  ques- 
tion is  competent  as  to  whether  the  defendant  was  negligent  in 
not  covering  it  in  his  mill;  and  it  is  not  necessary  to  call  experts 
to  prove  that  it  ought  to  have  ])een  covered.^ 

The  case  of  Blodgett  v.  Smith,  7  Hurl.  &  N.  732,  was  an  action 
to  recover  damages  for  injuries  to  plaintiff  by  coming  in  contact 
with  machinery  that  was  carelessly  left  unguarded.  Martin,  J.y 
says:  " Then  what  is  the  true  condition  of  the  plaintiff?  It  is- 
said  that  he  had  a  right  to  go  along  the  path  across  which  was 
the  machinery  erected  for  the  use  of  the  workmen  employed  in 
the  dock-yard,  and  had  liberty  to  use  the  water-closet;  but  that  is 
a  fallacious  argument.  It  is  true  that  plaintiff  had  permission  to 
use  the  path,  and  permission  involves  a  license,  but  it  gives  no 
right.  If  I  avail  myself  of  permission  to  cross  a  man's  land,  I  do 
so  by  virtue  of  a  license,  not  of  a  right.  It  is  an  abuse  of  lan- 
guage to  call  it  a  right;  it  is  an  excuse  or  license,  so  that  the  party 
cannot  be  treated  as  a  ti'espasser.  Inasmuch  as  there  was  another 
way  by  which  the  plaintiff  might  have  gone,  but  he  voluntarily 
chose  the  one  which  was  out  of  order,  I  think  he  has  no  right  of 
action  against  the  defendant,  and  that  he  ought  to  have  been  non- 
suited on  the  trial." 

The  decision  in  Siangan  v.  Atterton,  L.  R.  1  Exch.  239,  is  in- 
cidentally criticised  by  Cockburn,  Ch.  J.,  in  Clarh  v.  Chamhers^ 
L.  R.  3  Q.  B.  Div.  327,  who  remarks  that  "it  appears  that  a  man 
who  leaves  in  a  public  place  along  which  persons,  and  among  them 
children,  have  to  pass,  a  dangerous  machine  which  may  be  fatal 
to  anyone  who  touches  it,  without  any  protection  against  mischief, 
is  not  only  guilty  of  negligence,  but  negligence  of  a  very  repre- 
hensilDle  character." 

Where  a  boy,  four  or  five  years  old,  climbed  on  a  railroad  car 
standing  on  a  slightly  descending  grade  and  unfastened  the  brakes, 
starting  the  car,  and  then,  jumping  off,  was  run  over  and  killed, 
the  road  was  held  not  liable.  It  was  said:  "  The  cars  were  not 
dangerous  machines,  left  exposed  near  a  populous  city,  nor  were 

^Bolch  V.  5wjYA,7Hurl.  &N.  726;  Ccmioellv.  Worth,  25 L.  J.  N.  S.  Q.  B.  121. 
^Nadau  v.  White  Biier  Lu7nber  Co.  76  Wis.  120. 


Chap.  XX  VL]  DUTIES  IMPOSED  UPON  THE  OWNERS  OF  ANIMALS.      5Si> 

they  of  that  alluring  character  to  entice  boys  to  play  upon  them, 
for  when  unfastened  they  would  move  only  a  few  feet  and  then 
stop;  nor  were  they  dangerous,  even  when  moving,  to  ordinaiy 
boys.  Certainly  boys  from  ten  to  sixteen  years  of  age  were  not 
likely  to  be  hurt  by  them;  nor  could  one  anticipate  that  a  boy  less- 
than  five  years  of  age  would  have  gone  to  the  cars  unaccompanied 
hy  any  older  person  and  have  climbed  upon  one  of  tliem  and 
loosened  the  brake,  so  as  to  set  the  car  in  motion.  No  such  thing 
ever  occurred,  and  certainly  no  one  anticipated  that  a  boy  able  to 
do  that  would  have  fallen  off  or  jumped  ofi  in  front  of  the  car,  so 
that  the  car  would  have  run  over  and  killed  him.  The  most  of 
boys  would  have  stayed  on  the  cars  so  as  to  get  a  ride,  and  this  the 
company  has  a  right  to  expect." '  This  would  seem  to  indicate 
that  the  liability  of  the  defendant  is  to  be  determined  somewhat 
by  the  accuracy  of  his  judgment  as  to  the  motiv^es  that  may  prompt 
mischievous  boys  in  trespassing  upon  his  property. 

Section  7S.— Duties  Imposed  upon  the   Owners  of 

Animals. 

a.  At  Common   Laiv  the   Owner  inust  Keep  His 
Cattle  on  His  Own  Land.— Fences. 

There  is  a  consideration  which  seems  to  show  that  the  obhVa- 
tion  which  is  put  upon  the  owner  of  errant  cattle  should  not  be 
taken  to  be  a  principle  applicable  in  a  general  way  to  the  use  or 
ownership  of  property.  It  is  this:  that  the  owner  of  such  cattle 
must  restrain  them  at  his  peril  or  answer  for  the  natural  conse- 
quences. If  not  guilty  of  negligence,  he  is  liable  only  sub  modo, 
for  the  injury  done  by  them;  that  is,  he  is  responsible  with  regard 
to  tame  beasts  who  have  no  exceptionally  vicious  disposition,  so 
far  as  known,  for  the  grass  they  eat,  and  such  like  injuries,  but 
not,  unless»unlawfully  in  the  close  of  another,'^  for  the  hurt  they 
ma}'  inflict  on  the  person  of  others — a  restriction  on  liability  which 
is  hardly  consistent  with  the  notion  that  this  class  of  cases  pro- 
ceeds from  a  principle  so  wide  as  to  embrace  all  pei'sons  whose 

^Kansaa  Cent.  R.  Co.  v.  Fltzsimmons,  22  Kan.  686,  31  Am.  Rep.  203. 
^Meredith  v.  Reed,  26  Md.  384;  Van  Leuven  v.  Lyke,  1   N.  Y.  515;  Anderson 
V.  Buckton,  1  Strange,  192;  Ellis  v.  Loftus  Iron  Co.  L.  R.  10  C.  P.  10. 


586  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

lawful  acts  produce,  without  fault  in  them,  and  in  an  indirect  man- 
ner, ill  results  which  disastrously  affect  innocent  persons.  If  the 
principle  ruling  these  cases  was  so  broad  as  this,  conformity  to 
it  would  require  that  the  person  being  the  cause  of  the  mischief 
should  stand  as  an  indemnifier  against  the  whole  of  the  damage. 
It  would  seem,  therefore,  that  this  rule  which  applies  to  damages 
done  by  straying  cattle,  and  which,  in  the  case  of  an  owner  exer- 
cising due  care,  seems  to  rest  on  dicta,  and  not  on  express  decision, 
is  carried  beyond  its  true  bounds,  when  it  is  appealed  to,  as  it  was 
in  Fletcher  v.  Rylands^  L.  R.  1  Exch.  265,  as  proof  that  a  person 
in  law  is  answerable  for  the  natural  consequences  of  his  acts,  such 
acts  being  lawful  in  themselves,  and  having  been  done  with  proper 
care  and  skill.' 

At  common  law  the  owner  must  keep  his  cattle  upon  his  own 
land.  This  includes  the  brood  of  all  tame  and  domestic  animals^ 
as  they  belong  to  the  owner  of  the  dam.'  He  is  the  owner  of  the 
brood,  except  where  the  dam  may  be  temporarily  hired,  the  in- 
•crease  during  the  term  in  that  case  belonging  to  the  usufructuary.' 
But  a  bona  fide  purchaser  of  the  dam  at  the  time  the  offspring  is 
brought  forth  is  entitled  to  claim  it. " 

In  stating  the  liability  of  the  owners  of  animals  for  injury 
inflicted  by  them,  a  classification  has  been  made  of  animals 
into  those  that  arey^rte  naturcB  and  those  that  are  domitw  naturoe. 
Those  who  keep  the  latter  are  liable  for  damages,  exceptional  in 
their  nature,  only  when  they  enter  the  close  of  another,^  unless 
the}'  have  notice  of  some  vicious  propensities.*     Those  who  keep 

^Marshall  v.  Welicood,  38  N.  J.  L.  339. 

^Arkansas  Valley  L.  &  C.  Co.  v.  Mann,  130  U.  S.  69,  33  L.  ed.  854. 

^Wliite  V.  Storms,  21  Mo.  App.  288,  4  West.  Rep.  739. 

*Meyer  v.  Cook,  85  Ala.  417. 

^Decker  v.  Oammon,  44  Me.  332;  Barnum  v.  Vandusen,  16  Conn.  200. 

^Van  Leuven  v.  Lyke,  1  N.  Y.  515;  Hudson  v.  Roberts,  6  Exch.  697;  Kelly 
V.  TiUon,  2  Abb.  App.  Dec.  495;  Corliss  v.  Smith,  53  Vt.  532;  Bell  v. 
Leslie,  24  Mo.  App.  661;  Vt'ooman  v.  Lawyer,  13  Johns.  339;  Applebee  v. 
Perey,  L.  R.  9  C.  P.  647;  Smith  v.  Causey,  23  Ala.  568;  Ecajis  v.  McDer- 
mott,  49  N.  J.  L.  163,  4  Cent.  Rep.  559;  Le  Forest  v.  Tolman,  117  Mass. 
109;  G/iartwoodY.  Greig,  3  Car.  &  K.  46;  Fressey  v.  Wirth,  3  Allen,  191; 
Milus  V.  Dodge,  38  Wis.  300;  Flansbury  v.  Basin,  3  111.  App.  531;  Kight- 
linger  y.  Egan,  75  111.  141;  Loomis  v.  Terry,  17  Wend.  496;  Lynch  v. 
McNally,  7  Daly,  128.  73  N.  Y.  347;  Judge  v.  Cox,  1  Starkie,  285;  Murray 
V.  Young,  12  Bush,  337;  Dearth  v.  Baker,  22  Wis.  73;  Worth  v.  Gillitig, 
L.  R.  2  C.  P.  1;  Fleming  v.  Otr,  29  Eng.  L.  &  Eq.  16;  Hartley  v.  Hurri- 
man,  1  Barn.  &  Aid,  630;  McCaskill  v.  Mliott,  5  Strobh.  L.  196;  Logue 
V.  Link,  4  E.  D.  Smith,  63;  Arnold  v.  Norton,  25  Conn.  93. 


Oliap.  XX  YI.]  DUTIES  IMPOSED  UPON  THE  OWNERS  OF  ANIMALS.      587 

the  formei',  if  in  fact  they  are  of  the  species  recognized  as  fero- 
■cious,  such  as  tigers,  as  distinguished  from  sucli  harmless  quad- 
rupeds as  rabl)its,  although  both  belong  to  the  q\-a^b  fence  natures^ 
are  responsible  for  the  injury  they  do,  without  an}'  special  knowl- 
odge  beino;  shown  in  the  owner  of  their  character.'  Thus  bees 
are  fer(E  naturce^  and,  till  reclaimed,  are  only  owned  ratione  soli. 
Trover  will  not  lie  against  a  stranger  wlio  appropriates  a  hive  on 
land  not  belonging  to  plaintiff.'  A,  without  B's  permission,  put 
upon  a  tree  on  B's  land  an  empty  box  for  bees  to  hive  in.  After 
two  years  C  took  the  box  down,  took  out  a  swarm  of  bees  a«d  re- 
placed the  box.  These  facts  gave  no  action  of  trover  to  A  against 
C  Although  bees  may  be  properly  still  classed  among  those 
fercB  naturoB,  in  modern  times  the  bee  has  become  almost  as  com- 
pletely domesticated  as  the  ox  or  cow  or  dog.  Its  habits  and  its 
instincts  have  been  studied  and  through  the  knowledge  thus  ac- 
quired it  can  be  controlled  and  managed  with  nearly  as  much  cer- 
tainty as  any  of  the  domestic  animals;  and  it  must  be  regarded  as 
coming  very  near  the  dividing  line,  and,  considering  its  usefulness 
to  man,  its  keeping  cannot  be  regarded  as  negligent,  but  to  be  tol- 
erated and  even  encouraged.  Where,  in  an  action  against  the 
owner  of  bees  for  an  injury  done  by  them  to  the  plaintiff's  horses 
while  traveling  along  the  highway  past  the  place  where  the  bees 
were  kept,  it  appeared  that  the  bees  had  been  kej)t  in  the  same 
situation  for  eight  or  nine  years,  and  there  was  no  proof  of  any 
injury  ever  having  been  done  by  them,  but,  on  the  contrary,  per- 
sons residing  in  the  neighborhood  had  safely  passed  and  repassed, 
it  was  held  that  this  rebutted  the  presumption  of  any  notice  to  the 
defendant,  either  from  the  nature  of  the  bees  or  otherwise,  that  it 
would  be  dangerous  to  keep  them  in  that  situation,  and  that  he 
could  not  be  made  liable.*  But  such  danger  may  be  shown 
in   a   particular  locality.      In    Olmsted  v.  lilch,    53    Hun,  638, 

» 1  Hale,  P.  C.  430;  MitcJdll  v.  AUestry,  3  Keb.  650;  Muller  v.  McKisson,  73 
N.  Y.  195;  Bex  v.  Huggins,  2  Ld.  Raym.  1574,  1583;  Earl  v.  Van  Alstine, 
8  Barb.  680;  Laverone  v.  Mangianti,  41  Cal.  138;  Decker  v.  Gammon,  44 
Me.  322;  May  v.  Burdett,  9  Q.  B.  101;  Besozzi  v.  Harris,  1  Post.  &  F.  92; 
Congress  &  E.  S.  Co.  v.  Edgar,  99  U.  S.  645,  25  L.  ed.  487;  Woolf  v. 
Cluilker,  31  Conn.  121;  Van  Leuven  v.  Lyke,  1  N.  Y.  515;  Scribner  v. 
Kelley,  38  Barb.  14;  Applebee  v.  Percy.  L.  R.  9  C.  P.  647. 

'  ^Re-vroth  v.  Coon,  15  R.  I.  35,  1  New  Eng.  Rep.  35. 

*Earl  V.  Van  Alstine,  8  Barb.  630. 


588  IMPOSED  DUTIES,  PERSONAL.  [Part  IIL 

the  parties  resided  in  adjacent  houses  in  the  Village  of  Hobart. 
Defendant  was  a  bee  fancier  and  in  Jnly,  1S87,  kept  an  apiary  of 
140  swarms  on  his  premises,  and  within  iifty  feet  of  the  plaintiff's 
dwelling.  The  latter  complained  to  defendant  that  his  bees  were 
vicious  and  offensive  insects,  which  attacked  and  stung  members 
of  his  family  whenever  they  appeared  out  of  doors,  and  that  the 
intruders  also  annoyed  and  injured  the  pet  stock  upon  the  prem- 
ises. Defendant  declined  to  remove  or  restrain  the  bees,  where- 
upon plaintiff  began  an  action  in  the  supreme  court  demanding 
$l,50t  damages  for  the  annoyance  already  suffered  and  asking 
that  injunction  be  issued  restraining  defendant  from  any  longer 
maintaining  the  nuisance.  The  defendant  was  a  member  of  the 
National  Bee  Keepers'  Association,  which  undertook  the  defense, 
recognizing  the  importance  of  the  question.  The  trial  lasted  sev- 
eral days  and  the  jury  found  that  the  trespassers  were  from  the 
defendant's  swarm,  and  that  his  apiary  was  a  nuisance,  and  awarded 
nominal  damages  and  costs.  Thereupon  the  court  ordered  the  is- 
suance of  a  permanent  injunction  restraining  defendant  from  any 
longer  maintaining  the  nuisance  complained  of.  From  this  judg- 
ment defendant  appealed  to  the  general  term,  where  the  judgment 
below  was  affirmed. 

The  law  seems  to  be  perfectly  settled  from  early  times  as  to  the 
obligation  of  the  owner  of  cattle  which  he  has  brought  on  his  land;, 
the  owner  must  keep  them  in  at  his  pei'il,  or  he  will  be  answerable 
for  the  natural  consequences  of  their  escape, — that  is,  with  regard 
to  tame  beasts,  for  the  grass  they  eat  and  trample  upon  without 
inflicting  injury  to  the  person  of  others;  for  our  ancestors  have- 
settled  that  it  is  not  the  general  nature  of  a  horse  to  kick,  or  of 
bulls  to  gore;  but  if  the  owner  knows  that  the  beast  has  a  vicious- 
propensity  to  attack  man,  he  will  be  answerable  for  that  too,  if  he 
be  guilty  of  any  negligence  which  enables  the  animal  to  inflict  the 
injury,  or  the  animal  invade  the  close  of  another  and  there  cause 
damage.'  In  the  note  to  Fitzherbert,  Nat.  Brevium,  128,  attrib- 
uted to  Lord.  Hale,  it  is  said:  "  If  A  and  B  have  lands  adjoining, 
where  there  is  no  inclosure,  the  one  shall  have  trespass  against  the 

1  Y.  B.  20  Edw.  IV.  11,  pi.  10;  Tenant  v.  Ooldwin.  2  Ld.  Raym.  1089,  1 
Salk.  21,  360;  Cox  v.  Burbrklqe,  13  C.  B.  N.  S.  438,  32  L.  J.  N.  S.  C.  P. 
89;  May  v.  Burdett,  9  Q.  B.  il2;  Comyn,  Dig.  tit.  Droit,  M,  3. 


Oliap.  XXVI.]  DUTIES  IMPOSED  UPON  THE  OWNERS  OF  ANIMALS.      589 

other  in  an  escape  of  their  beasts  respectively,'  although  wild  dogs, 
etc.,  drive  the  cattle  of  one  into  the  lands  of  the  other." ' 

Blackstone  says:  "  Eveiy  nnwarrantal)le  entry  on  another's  soil 
the  law  entitles  a  trespass  by  breaking  his  close;  the  words  of  the 
writ  of  trespass  commanding  the  defendant  to  show  canse  quare 
<^lausum  fregit.  For  every  man's  land  is,  in  -the  eye  of  the  law, 
inclosed  and  set  apart  from  his  neighbor's;  and  that  either  by  vis- 
ible and  material  fence,  as  one  field  is  divided  from  another  by  a 
hedge;  or  b}'  an  ideal,  invisible  bonndary,  existing  only  in  con. 
templation  of  law,  as  when  one  man's  land  adjoins  to  another's  in 
the  same  field.  And  every  such  entry  or  breach  of  a  man's  close 
carries  necessarily  along  with  it  some  daniage  or  other;  for,  if  no 
other  special  loss  can  be  assigned,  yet  still  the  words  of  the  writ 
itself  specify  one  general  damage,  viz.,  the  treading  down  and 
bruising  his  herbage.  ...  A  man  is  answ^erable  for  not  only 
his  own  trespass,  but  that  of  his  cattle  also;  for  if,  by  his  negligent 
keeping,  they  sti-ay  upon  the  land  of  another  (and  much  more  if 
he  permits  or  drives  them  on),  and  they  there  tread  down  his 
neighbor's  herbage,  and  spoil  his  corn  or  his  trees,  this  is  a  trespass 
for  which  the  owner  must  answer  in  damages;  and  the  law  gives 
the  party  injured  a  double  remedy  in  this  case,  by  permitting  him 
to  distrain  the  cattle,  thus  damage  feasant  or  doing  damage,  till 
the  owner  shall  make  him  satisfaction;  or  else  by  leaving  him  to 
the  common  remedy  inforo  contentiose,  by  action." ' 

Chief  Justice  Beardsley  in  Tonawanda  H.  Co.  v.  Mxingei\  6 
Denio,  259,  in  delivering  the  opinion  of  the  court,  said:  "Every 
unwarrantable  entry  by  a  person  or  his  cattle  on  the  land  of  an- 
other is  a  trespass,  and  that  whether  the  land  be  inclosed  or  not."  ' 

It  is  a  general  rule  of  the  common  law  that  the  owner  of  cattle 
is  bound,  at  his  peril,  to  keep  them  off  the  land  of  other  persons, 
and  he  cannot  justify  or  excuse  such  an  entry  by  showing  that  the 
land  was  unfenced.  Fences  were  designed  to  keep  one's  own 
cattle  at  home,  and  not  to  guard  against  the  intrusion  of  those  be- 
longing to  other  people.' 

•Dwyer,  272;  Rast.  Ent.  Dec.  621;  20  Edw.  IV.  10. 
^Fletcher  v.  Rylands,  L   R.  1  Exch.  265. 
^3  Bl.  Cora.  209-211. 

<  ^eaWelhv.  Hoicell,  19  Johns.  385;  1  Chitty,  PI.  94.  95;  Browne,  Actions,  369. 
^Gale  &  W.  Easem.  297;  Rust  v.   Low,  6  Mass.  94;   Bush  v.   Braiitard,  1 
Cow.  79,  note. 


590  IMPOSED    DUTIES,  PERSONAL.  [Part  III,. 

The  rule  of  the  eonimon  law,  that  every  man's  land  was  inclosed^ 
either  by  a  material  fence  or  by  an  ideal,  invisible  boundary,  and 
that  every  unwarrantable  entry  thereon  by  a  person  or  his  cattle- 
was  a  trespass  by  breaking  his  close,  was  not  founded  on  an  arbi- 
trary regulation,  but  was  considered  as  incidental  to  the  owner- 
ship. It  is  a  part  of  that  principle  which  allows  every  man  the 
right  to  enjoy  his  property  free  from  molestation  or  interference- 
by  others;  it  is  simply  the  recognition  of  a  natural  right.  A  per- 
son owning  and  occupying  land  is  not  vested  with  the  right  to  en- 
joy it  upon  condition  that  he  inclose  it  by  a  fence  strong  enough 
to  keep  his  neighbors  and  their  stock  from  breaking  into  and  de- 
stroying the  fruits  of  his  labors.  Property  is  not  held  by  so  inse- 
cure a  tenure;  but  the  law  surrounds  it  by  an  ideal,  invisible  pro- 
tection, more  potent  than  any  mechanical  paling  which  can  be- 
constructed.  The  rule  is  not  required  to  be  adopted  in  order  to- 
be  in  force.  It  always  exists  where  the  right  of  private  dominion 
over  things  real  is  recognized.  It  pertains  to  ownei'ship.  The 
Legislature,  in  the  exercise  of  the  police  power  of  the  State,  may, 
no  doubt,  require  the  owners  of  lands  to  fence  them  in  a  certain 
manner,  and  in  default  thereof  to  withhold  from  them  a  remedy 
for  a  trespass  committed  thereon  by  animals  running  at  large.  In 
a  sparsely  populated  section  of  country,  where  there  are  extensive 
open  commons,  and  stock-raising  is  an  important  industry,  public 
policy  often  induces  the  adoption  of  such  a  regulation;  but  to  in- 
sist that  one  man  has  a  right  to  permit  his  stock  to  go  upon  the 
lands  of  another,  if  not  protected  by  a  material  inclosure,  is,  in 
effect,  a  denial  of  an  incident  of  ownership.  No  legislation  can 
legalize  such  a  trespass.  Legislation  of  the  character  referred  to 
goes  only  to  the  remedy,  and  no  attempt  to  extend  it  further  could 
be  justified.' 

As  the  common  law  made  it  the  duty  of  every  man  to  keep  his- 
cattle  within  the  limits  of  his  own  possessions,  if  he  failed  so  to 
keep  them,  he  failed  in  discharging  an  imposed  duty;  and  when 
they  strayed  upon  the  land  of  another  the  owner  was  justly  charge- 
able with  a  trespass  and  the  land  owner  upon  whose  lands  his  cat- 
tle trespassed  was  not  guilty  of  contributory  negligence,  for  the 
common  law  did  not  impose  upon  the  owner  of  the  lands  the  ob- 

^Bileu  V.  Paisley,  18  Or.  47,  4  L.  R.  A.  840. 


Chap.  XXVI.]  DUTIES  IMPOSED  UPON  THE  OWNERS  OF  ANIMALS.      59  I 

ligation  to  inclose  them  as  a  protection  against  the  beasts  of  oth- 
ers, lie  miglit,  at  his  option,  leave  them  entirely  uninclosed,  and 
it  was  then  as  nnlawfnl  for  the  beasts  of  a  neighbor  to  cross  the 
invisible  boundary  line  as  it  would  be  to  overleap  or  throw  down 
the  most  substantial  wall.'  Whenever  two  persons  have  adjoin- 
ing fields,  and  no  hedge  or  fence  between  them,  each  must  take 
care  that  his  own  beasts  do  not  trespass  on  his  neighbor.^  This 
rule  became  a  part  of  the  common  law  in  most  of  American 
States,  and  it  still  remains  a  part  of  it,  except  as  legislation  has 
modified  or  abolished  it.'  Where  beasts  unlawfully  enter  upon 
the  premises  of  another,  and  there  commit  mischief,  it  is  a  part  of 
the  damage  suffered  from  the  trespass,  and  goes  to  swell  a  recov- 
ery which  the  unlawful  entry  justifies.*  If  a  man's  cattle,  sheep 
or  poultry,  or  any  animals^  in  which  the  law  gives  him  a  valuable 
property,  trespass  upon  another's  close,  the  owner  of  the  animals 
is  responsible  for  the  trespass  and  consequential  damage,  unless  he 
can  show  that  his  neighbor  was  bound  to  fence,  and  had  failed  so 
to  do." 

In  Kerwhaher  v.  Cleveland  cfc  C.  R.  Co.,  3  Ohio  St.  179,  it  is 

^Wells  V.  Howell,  19  Johns.  38");  Stafford  v.  Inc/erHol,  3  Hill.  38;  Ellis  v.  Lof- 
tus  Iron  Co.  L.  R.  10  C.  P.  10,  11  Moak,  Eng.  Hep.  214;  French  v. 
Cresswell,  13  Or.  418. 

^Boyle  V.  Tamlyn,  6  Barn.  &  C.  337. 

^Little  V.  Lathrop,  5  Me.  356:  Lord  v.  Worrmcood.  29  Me.  282;  Avery  v.  Max- 
well, 4  N.  H.  36;  Rud  v.  Loic,  6  Mass.  90;  Thayer  v.  Arnold,  4  Met.  589; 
Lyons  v.  Merrick,  105  Mass.  71;  Boston  &  A.  it.  Co.  v.  Brigg.^,  132  Ma.ss. 
24;  Wells  v.  Eoicell,  19  .Johns.  385;  IloUaday  v.  Marsh,  3  Wend.  142;  Angn» 
Y.  Radin,  5  N.  J.  L.  815;  Co.ve  v.  Bobbins.'^  N.  J.  L.  384;  Neio  York  &E. 
R.  Co.  V.  Skinner,  19  Pa.  298;  Dolph  v.  Ferris,  7  Watts  &  S.  367;  Gregg 
V.  Gregg,  55  Pa.  227;  Richardson  v.  Milburn,  11  ]\Id.  340;  Brady  v.  Bad, 
14  Ind.  317.  See  Stone  v.  Kopka,  100  Ind.  458;  Williams  v.  Mich.  Cent. 
R.  Co.  2  Mich.  259;  Stone  v.  Donaldson,  1  Pinney,  393;  Harrison  v. 
Browyi,  5  Wis.  27;  Locke  v.  First  Div.  St.  Paid  &  P.  R.  Co.  15  Minn.  350; 
Union  Pac.  R.  Co.  v.  Rollins,  5  Kan.  167;  Vandegrift  v.  Delaware  R.  Co. 
2  Houst.  287;  Hurd  v.  Rutland  &  B.  R.  Co.  25  Vt.  116. 

*Lyke  v.  Van  Leuven,  4  Denio.  127;  Van  Leuven  v.  Lyke,  1  N.  Y.  515;  Ma- 
son V.  Morgan,  24  U.  C.  Q.  B.  328. 

•Except dogs.  State  v,  Donohue,  49 N.  J.  L.  548,  8  Cent.  Kep.  Q2\; Murphy 
V.  Preston,  5  Mackey,  514,  9  Cent.  Rep.  146;  Broicn  v.  Giles,  1  Car.  & 
P.  118;  Reed  v.  Edwards,  17  C.  B,  N.  S.  245.  But  if  the  owner  unlaw- 
fully enter  a  clo.se  accompanied  by  his  dog,  which  injures  an  animal 
therein,  the  owner  will  be  liable  for  the  injury  without  proof  of  his 
knowledge  of  the  dog's  vicious  disposition,  as  it  is  the  owner's  trespass. 
Green  w.  Doyle,  21  111.  App.  205;  Beckwith  v.  Shordike,  4  Burr.  2092. 

*S{igrill  V.  Mikcard,  21  Hen.  VI.  p.  33.  pi.  20;  Lee  v.  Riley,  34  L.  J.  N.  S. 
C.  P.  212;  Wells  v.  Howell,  19  Johns.  385;  Lyke  v.  Van  Leuven,  4  Denio, 
127. 


592  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

denied  that  the  common-law  doctrine,  relative  to  the  dutj  of  the 
owner  of  cattle  to  keep  them  upon  his  own  grounds,  was  ever 
adopted  in  this  country.  But  in  that  State  the  force  of  the  com- 
mon-law principles  has  been  always  denied.  In  Seeley  v.  Peters^ 
10  111.  142,  the  inapplicability  of  the  common  law  to  the  condi- 
tion of  that  State  and  its  people  is  recognized.'  And  in  Buford 
V.  Houtz,  133  U.  S.  320,  33  L.  ed.  618,  it  is  denied  that  the  com- 
mon-law doctrine  ever  applied  to  the  government  lands. 

In  the  absence  of  a  statute  changing  the  common-law  rule,  ex- 
<'ept  as  stated  above,  a  party  is  not  obliged  to  fence  his  land  be- 
fore he  can  maintain  an  action  of  damages  for  trespass  by  cattle 
thereon.* 

b.    Statutes   Mequirijig    Land    Owner    to    Fence 
against  Trespassing  Domestic  Animals. 

In  Maine  the  common-law  rule  prevails  that  the  owners  of  cat- 
tle should  keep  them  in  and  land  owners  are  not  required  to  fence 
against  trespassing  animals.^  This  is  so  also  in  Massachusetts," 
New  York,'  Maiyland,"  jS'ew  Jerse}^,'  Indiana,'  Michigan,"  Illi- 
nois," Yermont,''  Connecticut,'^  Oregon,"  Kansas'*  and  North  Caro- 
lina.'^  In  California  the  liability  exists  without  the  common  law." 
In  Iowa,  Texas,  Florida,  Missouri,  Ohio,  Mississippi,  Colorado  and 
some  other  States  the  common-law  rule  has  never  been  recognized, 

'See  also  Comerford  v.  Bupuy,  17  Cal.  310;  Logan  v.  Gedney,  38  Cal.    679; 

titudwell  V.  Eitch,  14  Conn.  293. 
^French  v.  Cressioell,  13  Or.  418. 
^Little  V.  Lathrop,  5  Greenl.  857. 
'^Thayer  v.  Arnold,  4  ]\Iet.  589. 
^Stafford  v.  Incjersol,  3  Hill,  38. 
^Richardson  v.  Milburn,  11  Md.  340. 
■>Coxe  V.  Bobbins,  9  N.  J.  L.  477. 
Wrady  v.  Ball,  14  Ind.  317;  ^  4S34,  Ind.  Rev.  Stat.  1881;  Indianapolis,  C.  &  L. 

B.  Co.  V.  Harter,  38  Ind.  557. 
^Johnson  v.  Wing,  3  Mich.  163. 
^HfcBridev.  Lynd,  55  III.  411. 

^^  Wilder  X.   Wilder,  38  Vt.  67:J;  Keenanv.  Uavanangh,  44  Vt.  2G8. 
^"Studwell  V.  BUch,  14  Conn.  292. 

^'^French  v.  Oresswell,  13  Or.  418;  Bileu  v.  Paisley,  18  Or.  47,  4L.  R.  A.  840. 
^*Baker  v.  Bobbins,  9  Kan.  303. 
^=Burgtcyn  v.  Whifield,  81  N.  C.  261. 
"5aA«  V.  Garratt,  69  Cal.  146. 


Chap.  XXYL]  DUTIES  imposed  upon  the  owners  of  animals. '593 

but  tlie  fact  tliat  tlie  owner  of  land  iie<;lects  to  fence  is  treated  as 
a  license  to  cattle  to  enter,  the  only  liability'  existing  being  where 
the  animal  breaks  through  a  lawful  fence.' 

The  matter  is,  however,  generally  regulated  by  statute  in  the 
States,  which,  to  more  or  less  extent,  modify  the  common  law  or 
limit  the  recovery  under  it."  Thus,  in  Mississippi  the  Code  of 
1S80,  §  984,  which  provides  that  '•'  every  owner  of  cattle,  horses," 
•etc.,  "shall  be  liable  for  all  injuries  and  trespasses  committed  by 
animals  running  at  large  in  a  common  inclosure,"  docs  not  require 
a  lawful  fence  for  the  common  inclosure;^  and  in  California  an 
owner  of  land  situated  in  Santa  Clara  County,  under  the  Act  of 
April,  1803,  as  amended  in  March.  1872,  was  not  recpiired  to  fence 
it  against  cattle  belonging  to  another  person.''  And  even  where 
legislation  has  been  had  as  between  adjoining  proprietors,  until 
the  statutory  assignment  of  what  each  shall  l)uild  and  keep  in  re- 
l>air  has  been  made  to  them  respectively,  each  remains  liable  at  the 
■common  law  for  injuries  done  by  his  beasts.^ 

"Where  the  declaration  alleged  that  the  defendant's  sow  and 
pigs  mangled  and  tore  a  cow  and  calf  of  the  plaintiffs  so  that  they 
■died,  and  the  evidence  tended  to  show  that  the  injury  was  com- 
mitted as  alleged,  and  that  it  was  done  while  the  sow  and  pigs 
were  trespassing  in  the  plaintiffs'  close,  the  plaintiffs  were  not  al- 
lowed to  recover  for  want  of  an  averment  or  proof,  a  scienter  or 
an  allegation  of  a  breach  of  the  plaintiffs'  close."  But  for  this 
defect  in  pleading  or  proof  he  would  have  been  answerable.''  So 
a  commoner  mIio  puts  his  beasts  upon  a  common  which  is  not  in- 

^Haughey  v.  J3"a/"?,  63  Iowa,  96;  Wilhifev.  Speakman,  79  Ala.  400;  Savan- 
nah, F.  &  W.  R.  Co.  V.  Oeiffer,  21  Fla.  669;  Andemon  v.  Locke,  64  .Miss. 
283;  McP/metersv.  Hannibal  &  St.  J.  R.  Co.  45  Mo.  22;  Cleveland,  C.  d- C. 
R.  Co.  V.  Elliott,  4  Ohio  St.  474;  Raiford  v.  Mississijypi  &  C.  R.  Co.  43  Mii^s. 
233;  Morris  v.  Fmker,  5  Colo.  425. 

^Seeley  v.  Peters,  10  111.  130;  Brady  v.  Ball.  14  Ind.  3)7;  Warjntr  v.  Bissell, 
3  iowa,  396;  Wilder  v.  Wilder,  38  Vt.  678. 

^Montgomery  v.  Handy,  63  Miss.  43. 

*nahn  V.  Gnrratt,  69  Cal.  146. 

K''yxe  V.  Robbins,  9  N.  .1.  L.  384;  Rust  v.  Low,  6  jMm'^s.  90;  HmtJi,  v.  Ricker, 
2  Me.  72;  Little  v.  LatJwoj),  5  Me.  357;  Kno.v  v.  Tucker.  4H  Me.  373;  Brad- 
bury v.  Gilford,  53  Me.  99;  Harlow  v.  Stinson,  60  Me.  347.  See  Ayles- 
worth  V.  Herrington,  17  Mich.  417;  Cooley,  Torts,  400. 

^Van  Leuven  v.  Lyke,  1  N.  Y.  515. 

''Anderson  v.  Buckton.  1  Strange,  192;  Ellift  v.  Tx>ftm  Iron  Co.  L.  R.  10  C. 
P.  10;  Decker  v.  Oammon,  44  Me.  322;  Mafon\.  Morgan,  24  U.  C.  Q.  B. 
328. 

38 


59 J:  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

closed  is  bound  at  his  peril  to  see  that  his  beasts  do  not  stray  from 
the  common  and  trespass  upon  another  man's  land.*  And  even 
though  a  person  turn  his  cattle  into  a  highway,  in  pursuance  of  a 
by-law  of  the  town,  yet  if  they  escape  on  the  land  of  another,  he 
will  be  liable  for  the  damage,  unless  he  shows  that  they  entered 
the  plaintiff's  premises  through  the  insufficiency  of  his  fence.* 
Nor  may  cattle  be  driven  on  prairie  land  against  the  owner's  will;' 
and  close-herded  sheep  may  not  negligently  be  allowed  to  tres- 
pass.* A  stranger  may  be  sued  as  well  as  the  owmer  for  the  tres- 
pass.* 

In  an  action  for  damages  done  to  plaintiff's  field  by  a  horse 
which  the  defendant  was  pasturing  for  hire,  and  which  escaped 
by  his  negligence  from  his  pasture  to  the  field  of  the  plaintiff,  he 
was  held  answerable  so  far  as  the  damage  resulted  from  the  horse's 
conducting  itself  as  an  animal  ordinarily  would  do,  and  might 
fairly  be  expected  to  do,  but  so  far  as  the  damage  resulted  from 
some  peculiar  viciousness  of  the  horse,  he  was  not  responsible.* 
But  for  such  viciousness  of  a  mule  belonging  to  him,  which  es- 
caped at  the  same  time,  he  was  held  responsible.' 

If  animals  belonging  to  several  different  owners  trespass  upon 
another's  land,  an  action  does  not  lie  against  them  jointly  there- 
for unless  one  is  given  charge  of  the  animals;*  but  separate  ac- 
tions must  be  brought  against  each  owner  for  the  injury  done  by 
his  beast.*  And  in  the  absence  of  proof  as  to  how  much  damage 
each  animal  did,  the  presumption  is  that  each  did  an  equal  amount 
of  damao-e.'"     Where  a  strano-er  without  right  took  defendant's 

^Read  v.  Edicards,  34  L.  J.  N.  S.  C.  P.  83. 

^  White  V.  Scott,  4  Barb.  56;  C'oioles  v.  Balzer,  47  Barb.  563. 

^Delaney  v.  Errickson,  11  Neb.  533. 

^Willardv.  Mathesus,  7  Colo.  76. 

0  2  Roll.  Abr.  546,  pi.  20;  Daiotry  v.  Huggins,  Clayt.  82,  pi.  56. 

^Barnuni  v.  Vanduseii,  16  Conn.  200;  Lyons  v.  Merrick,  105  Mass.  71. 

''Lyons  v.  Merrick,  105  Mass.  71. 

^Oakes  v.  Spaulding,  40  Vt.  347.  Or  in  case  of  partners.  Adams  v.  Hall,  3  Vt. 
9;  Smith  V.  Jaques,  6  Conn.  530. 

^Partenheimer  v.  Van  Order,  20  Barb.  479;  Van  Steenhurgh  v.  Tobias,  17 
Wend.  562;  Denny  v.  Gorrell,  9  Ind.  73;  Auchrnuty  v.  Ham,  1  Detiio, 
495;  Buddington  v.  Shearer,  20  Pick.  477,  22  Pick.  427;  Smith  v.  Mont- 
gomery, 52  Me.  178. 

^Tartenheimsr  v.  Van  Order,  20  Barb.  479.  See  Carroll  v.  Waiter,  1  Hun, 
605;  McAdams  v.  Sutton,  24  Ohio  St.  333;  Kerr  v.  O'Connor,  63  Pa.  341; 
Hansburg  v.  Basin,  3  111.  App.  531. 


Chap.  XXVI.]  DUTIES  IMPOSED  UPON  THE  OWNERS  OF  ANIMALS.    595 

animal  from  his  field  and  released  it  and  it  wandered  into  the  close 
of  the  plaintiff,  the  latter  was  allowed  to  recover  for  the  injury 
done  bj  it.' 

Where  dogs  of  different  physical  strength  belonging  to  differ- 
ent owners  inflicted  injury  on  sheep,  the  owner  of  the  stronger 
dog  cannot  complain  at  being  called  on  to  pay  the  larger  dam- 
ages.* 

In  actions  brought  for  damages  for  injury  done  by  cattle  break- 
ing into  a  field,  the  state  statutes,  where  the  common-law  rule  doe:* 
not  prevail,  make  it  a  condition  precedent  to  recovery  that  the 
field  be  inclosed  by  hedge  or  fence.'  A  fence  should  be  of  suf- 
ficient height  to  restrain  such  cattle  as  are  ordinarily  kept  within 
inclosures.*  Persons  familiar  with  a  fence  and  its  operation,  from 
personal  observation,  can  testify  as  a  matter  of  knowledge  that  it 
did  operate  to  keep  stock  out.*  Lot  fronts  in  a  city  need  not, 
however,  be  fenced,  unless  there  is  an  ordinance  requiring  it.' 

The  Statutes  of  Oregon,  which  require  fields  and  inclosures  to 
be  inclosed  with  certain  kinds  of  fence,  and  provide  a  remedy  in 
case  stock  or  swine  break  into  the  same  when  so  fenced,  do  not 
appl}'  to  ditches  constructed  across  public  lands  in  the  State  for 
mining  purposes.  Hence  the  owner  of  sheep  may  beheld  in  dam- 
ages for  injuries  by  reason  of  the  sheep  running  over  the  same, 
although  there  is  no  proof  that  they  were  purposely  or  negli- 
gently driven  thereon,  and  the  ditches  were  unfenced.'  But  the 
action  must  be  properly  brought  for  the  simple  trespass,  for  in  an 
action  for  trespass  for  willfully  and  maliciously  driving  sheep  on 
the  lands  of  plaintiff  to  consume  and  destroy  the  grass,  a  charge 
in  substance  that  if  the  sheep  strayed  on  the  uninclosed  lands  of 

^Noyes  v.  Colhy,  30  N.  H.  143,  But  see  Cooke  v.  Waring,  2  Hurl.  &  C.  332, 
where  evidence  of  negligence  was  required  to  be  sliown  ou  defendant's 
part. 

^Wilbur  V.  Hubbard,  35  Barb.  303. 

^Scott  V.  Grover,  56  Vt.  499;  Sfovallv.  Emerson,  20  Mo.  App.  322,  2  West. 
Rep.  614;  Fenton  v.  Montgomery,  19  Mo.  App.  156,  1  West.  Rep.  416; 
We«sv.  TFa^te/-*,  5  Busli,  Zh\\Akeri<v.  George,  61  111.  376;  Little  v.  Mc- 
Guire,  38  Iowa,  500;  Gorman  v.  Pacific  R.  Co.  26  Mo.  445;  Mo&re  V. 
White,  45  Mo.  206 ;  Duffies  v.  Judd,  48  Iowa,  256. 

^Chicago  &  A.  R.  Co.  v,  Utley,  38  111.  410, 

^Silvarer  v.  Hansen,  111  Cal.  579. 

^Detroit  v.  Beecher,  75  Mich.  454. 

"^Bileu  V.  Paisley,  18  .Or.  47,  4  L.  R.  A.  840. 


596  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

the  plaintiff,  or  were  driven  there  for  the  purpose  of  pasturage, 
and  not  for  the  purpose  of  maliciously  injuring  the  lands,  the 
plaintiff  could  not  recover,  was  held  to  be  proper.' 

All  agreement  to  dispense  with  a  partition  fence  is  not  the 
equivalent  of  a  legal  fence,  so  as  to  justify  the  killing  of  stock 
escaping  by  negligence  of  one  of  the  parties,  and  depredating  on 
the  premises  and  crops  of  the  other.  To  kill  stock  unnecessarily, 
without  responsibility  for  so  doing,  an  actual  lawful  fence  must 
have  been  broken, — not  merely  a  contract  or  agreement  to  dis- 
pense with  a  fence  or  to  treat  the  dividing  line  as  though  it  were 
a  fence.''  But  the  duty  may  be  imposed  by  covenant  or  prescrip- 
tion, and,  where  it  is,  the  same  liability  attaches  as  under  the  com- 
mon-law rule,  and  the  person  on  whom  the  duty  rests  will  be  lia- 
ble for  all  damages  resulting  from  his  neglect.^ 

G.  Fence  must  not  he  a  Source  of  Danger  to  Cattle 
in  Adjoining  Field  or  Highway. 

Although  a  land  owner  is  not,  unless  by  statute,  bound  to  main- 
tain any  fence  at  all,  yet  if  he  undertake  to  maintain  one,  he  is 
boimd  to  see  that  it  is  not  made  a  source  of  danger  to  passing  ani- 
mals. It  is  the  duty  of  a  land  owner  to  take  notice  of  the  natural 
propensity  of  domestic  animals,  and  to  exercise  reasonable  care  to 
prevent  his  fence  from  becoming  harmful  to  them  by  reason  of 
these  habits.  The  fact  that  a  fence  was  constructed  entirely  upon 
defendants'  land  is  no  answer  in  a  suit  for  an  injurj''  thus  caused 
if  the  fence  was  negligently  constructed  or  maintained. 

In  Malloy  v.  Hihernia  Savings  dh  Loan  Sooiety  (Cal.  A])ril  22, 
1889),  21  Pac.  Rep.  525,  the  defendant  had  negligently  suffered  a 
privy  vault  and  cesspool  to  remain  open  upon  its  premises,  about 
ten  feet  from  the  sidewalk  of  a  public  street  in  the  City  of  San 
Francisco,  Avithout  any  inclosure,  and  plaintiff''s  minor  child,  with- 
out any  fault  or  negligence  on  his  (plaintiff's)  part,  had  fallen  into 
the  same  and  was  drowned  therein.     The  demurrer  to  the  com- 

^Fant  V.  Lyman-  (Moat.  Aug.  3,  1889)  23  Pac.  Rep.  130. 

^Tumlin  v.  Parrott,  83  Ga.  733.     See  Wilhite  v.  Speakman,  79  Ala.  400. 

^Holden  v.  .SAaMMcA;,  34  Vt.  336;    Wells  v.  HoweU,  19  .Johns.  385;    Cowles -v. 

Balzer,  47  Barb.  563;  State  v.  Lamb,  8  Ired.  L.  229;  Jones  v.  Wither  spoon, 

7  Jones,  L.  555. 


Chap.  XXVI.]  DUTIES  IMPOSED  UPON  THE  OWNERS  OF  ANIMALS.     597 

plaint — which  stated  substantially  these  facts — was  sustained  in 
the  court  below,  and  the  order  reversed  on  appeal.  The  decision 
was  based  upon  the  principle  tliat  one  should  so  use  his  own  prop- 
erty as  not  to  injure  the  property  of  another.  Of  course,  this 
principle — which  is  a  maxim  of  common  justice,  as  well  as  of  law 
— does  not  create  a  liability  for  every  injury  one  may  sustain 
through  the  use  by  another  of  his  own  property;  but  where  the 
latter  is  guilty  of  a  breach  of  duty  which  he  owes  to  others  in  the 
use  of  his  property,  whether  by  intention  or  neglect,  he  is  liable 
for  any  injury  which  is  occasioned  thereb}",  if  the  injury  is  the 
natural  or  probable  result  of  the  act,  and  such  as  a  prudent  man, 
under  the  circumstances,  acting  with  ordinary  care,  would  have 
foreseen.  Under  such  circumstances,  it  is  no  defense  that  the  prop- 
erty is  used  for  a  lawful  purpose.' 

This  pi-inciple  was  applied  in  Rehler  v.  Western  N.  Y.  &  P. 
R.  Co.,  55  Hun,  604,  where  it  was  ruled  that  a  railroad  company 
has  no  right  to  erect  on  its  line  a  fence  which  is  a  source  of  danger 
and  probable  cause  of  injury  to  cattle  running  in  an  adjoining 
Held.-' 

In  the  last  case  cited  it  was  held  that  one  w^ho  erects  and  maintains 
a  barb-wire  fence,  although  entirely  upon  his  own  land,  the  wires 
of  which  are  not  properly  stretched,  but  are  left  hangijig  loose  in 
such  a  way  that  stock  is  not  likely  to  see  them,  and  is  liable  to  run 
upon  them  and  be  injured,  is  guilty  of  negligence  creating  a  liabil- 
ity for  such  injuries.  In  Firtli  v.  Bow/hig  Iron  Co.,  L.  R.  3  C. 
P.  Div.  254,  where  pieces  of  defendant's  wire-rope  fence  fell  upon 
plaintiff's  land,  and  his  animals  were  injured  by  eating  it,  defend- 
ant was  held  liable  for  the  injury. 

In  Sisk  v.  Crumj),  112  Ind.  574, 12  West.  Rep.  134,  although  the 
Statute  in  that  State  expressly  recognizes  the  right  to  use  barb- 
wire  fences,  it  was  ruled  that  where  animals  are  allowed  to  run  at 
large  by  permission  of  the  proper  authorities,  the  maintaining  of 
such  a  fence  in  an  insecure  manner, — with  the  wires  insutficiently 
stretched  through  the  posts,  a«d  with  no  board  upon  the  top  of 
the  fence,  and  at  a  height  that  would  not  prevent  animals  from 

^Birge  v.  Gardiner,  19  Conn.  507;  Durham  v.  Musfiehnan,  2  Blackf.  96,  18 
Am.  Dec.  138;  Kanms  Cent.  R.  Co.  v.  Allen,  22  Kivn.  285. 

*See  also  Powers  v.  Harlow,  53  Mich.  507;  Fink  v.  Missouri  Furnace  Co.  10 
Mo.  App.  69;  Atlanta  &  W.  P.  R.  Co.  v.  Uudsoii,  62  Ga.  680;  Lovelandv. 
Gardner,  79  Cal.  317,  4  L.  R.  A.  395. 


598  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

attempting  to  pass  it,  and  where  animals  are  allowed  to  feed  within 
the  inclosnre  upon  grass  growing  therein,  which  would  naturally 
attract  animals  passing  to  make  an  attempt  to  reach  the  herbage, — 
would  render  the  owner  liable  for  the  injury  of  such  animals  in 
such  attempt,  on  the  ground  of  negligence  in  the  performance  of 
a  duty  which  he  owes  to  the  public  generally,  and  therefore  to 
every  member  of  the  community.  It  is  the  duty  of  the  owner  of 
such  a  lot  to  take  notice  that  horses  and  cattle  might  rightfully, 
by  permission  of  the  county  commissioners,  wander  upon  the 
highway,  and  with  this  knowledge  he  has  no  right  to  do  anything 
which  is  reasonably  certain  to  cause  injury  to  such  animals.  The 
lot  owner  is  not  bound  to  maintain  a  secure  fence,  nor  indeed  any 
fence;  yet  if  he  does  undertake  to  maintain  a  fence  on  the  high- 
way he  must  not  negligently  suffer  it  to  become  dangerous  to 
passing  animals.  The  liability  in  that  case  is  placed  upon  the 
ground  that  the  fence  was  so  negligently  maintained  that,  under 
the  circumstances,  it  w-as  in  effect  a  trap,  in  which,  it  was  in  a 
great  degree  probable,  passing  animals  would  be  caught  and  in- 
jured. It  is  the  dut}'  of  the  land  owner  to  take  notice  of  the  nat- 
ural propensity  of  domestic  animals;  and  in  that  case  it  was  the 
duty  of  the  defendant  to  take  notice  of  the  propensity  of  horses 
to  seek  the  pasture  within  the  inclosure,  and  join  other  animals  of 
the  same  kind  feeding  there.  In  view  of  the  facts  that  the  board 
of  commissioners  authorized  animals  to  run  at  large,  that  the  de- 
fendant was  charged  with  notice  of  this  order,  that  he  was  bound 
to  know  that  it  was  probable  that  animals  wandering  on  the  high- 
way would  seek  his  pasture,  and  that  the  fence  was  so  maintained 
as  to  be  in  effect  a  trap  to  passing  horses,  there  was  stated  a  suffi- 
cient cause  of  action.' 

d.  County  Coimnissionpyrs  or  Local  Authorities 
may  he  Eiupowerecl  to  Authorize  Cattle  to 
Run  at  Large.— Driving  off  Trespassing  Ani- 
mals. 

In  many  States  the  boards  of  county  commissioners  are  empow- 
ered to  enter  orders  permitting  certain  kinds  of  cattle  to  run  at 

'See  Durham  v.  Musselman.  2  Blackf.  96;  Young  v.  Harvey, 16  Ind.  314;  Towns- 
end  v.  Wathen,  9  East,  277;  Jones  v.  Nichols,  46  Ark.  207,  55  Am.  Rep.  575. 


Chap.  XXVI.]  DUTIES  IMPOSED  UPON  THE  OWNERS  OF  ANIMALS.      599 

large.  The  Legislature  unquestionably  has  power  to  vest  county 
authorities  with  power  to  regulate  the  running  at  large  of  domes- 
tic animals; '  and  where  such  power  is  vested  in  them,  it  is  not 
necessary  to  show  that  plaintiffs  fence  was  a  lawful  one,  unless  it 
be  shown  by  defendant  that  an  order  had  been  made  by  the  board  of 
county  commissioners  permitting  domestic  animals  to  run  at  large.' 

Under  a  Statute  of  North  Carolina  imposing  the  duty  upon 
the  county  commissioners  of  building  and  keeping  in  repair  the 
fence  around  the  territory  embraced  by  the  Stock  Law,  an  owner 
of  stock  who  resides  outside  of  such  territory  is  not  liable  to  have 
his  stock  impounded  if  found  therein,  where  the  county  commis- 
sioners have  negligently  failed  to  keep  the  fence  in  repair.'  But 
it  is  held  in  Georgia  that  the  building  of  the  required  fence  around 
a  district  which  has  adopted  the  "  No-Fence  Law,*'  as  provided  for 
in  Ga.  Code,  §  1455,  is  not  a  condition  precedent  to  the  operation 
of  the  law  making  it  illegal  for  stock  to  be  at  large  in  such  dis- 
trict." And  in  Texas  it  is  said  that,  the  common-law  doctrine  re- 
quiring the  owner  of  stock  to  keep  them  off  the  land  of  others  not 
being  in  force  in  Texas,  the  Act  of  Feb.  15, 1882,  to  prevent  stock 
running  at  large  in  certain  districts,  applies  to  any  animal  or  ani- 
mals found  loose  in  such  district,  no  matter  where  the  owners 
]'eside.' 

That  hogs  are  found  at  large  in  a  township  where  they  are  pro- 
hibited by  law  from  running  at  large  is  not  conclusive  evidence 
that  they  are  trespassers  as  contemplated  by  Kan.  Gen.  Stat.,  chap. 
105,  §  46.  If  it  is  by  the  deliberate  or  negligent  acts  of  the  owner 
thsy  are  to  be  considered  as  running  at  large;  but  if  by  accident 
without  the  fault  of  the  owner,  they  are  not  to  be  so  considered.* 

Where,  without  the  fault  of  the  land  owner,  animals  trespass 
upon  his  land,  lie  may  use  reasonable  means  for  their  removal  to 
the  highway.^     But  if  by  reason  of  his  defective  fence  the  cattle 

>  Welch  V.  Bowen,  103  Ind.  2o2,  1  West.  Rep.  305;  Knfe  v.  Letter,  103  Ind. 

138,  1  West.  Rep.  165;  Si.sk  v.  Crump,  112  Ind.  504,  12  West.  Rep.  137. 
'^Atkinson  v.  Mott,  102  Ind.  431,  3  West.  Rep.  307. 
^Coor  V.  Rogers,  97  N.  C.  143. 
*HolUman  v.  Kingery,  81  Ga.  624. 
'•Anderson  v.  Locke,  64  Miss.  283. 

^Leavenworth,  T.  &  8.  W.  R.  Co.  v.  Forbes,  37  Kan.  448. 
''Clark  V.  Adams,  18  Vt.  425;  Lord  v.  Wormwood,  21)  Me.  283;  McTntire  v. 

Plaisted,  57  N.  H.  606;  Humphrey  v.  Douglass,  10  Yt.  71. 


600  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

are  not  trespassers  under  the  Statute,  as,  if  they  reach  his  land 
through  defective  partition  fences  which  he  was  negHgent  in  not 
maintaining,  he  must  return  them  to  his  neighbor's  land.'  lie 
may  remove  animals  coming  upon  his  land  through  his  defective 
fences  to  the  highway,  but  may  not  drive  them  an  unreasonable 
distance  thereon.* 

e.  Impounding  Domestic  Animals. 

In  the  States  various  statutes  are  in  force  authorizing  the  taking 
up  of  cattle  running  at  large  or  trespassing,  and  providing  for  no- 
tice of  the  fact,  and  sale  of  the  animals,  when  not  reclaimed,  to 
pay  damages  suifered  and  for  expense  of  keeping  them.  But 
where,  without  fault  of  the  owner,  a  domestic  animal  passes  from 
such  owner's  inclosure,  over  or  tlirough  a  line  fence,  into  the  in- 
closure  of  an  adjoining  proprietor,  and  thence  through  a  gap  in  a 
fence  into  the  inclosure  of  another  and  adjacent  proprietor,  he  is 
not  running  at  large  contrary  to  the  provisions  of  such  statutes, 
and  no  person  is  authorized  to  take  up  and  confine  him  until  the 
owner  pay  or  tender  compensation  or  other  charges.' 

In  case  of  trespass  of  cattle  on  uninclosed  land  the  owner  is  not 
authorized  to  seize  them  for  the  enforcement  of  payment  of  dam- 
ages and  costs  under  the  statute.'* 

Indeed,  power  to  impound  and  forfeit  domestic  animals  must 
be  expressly  granted  to  a  municipal  corporation  ;  and  laws  or  or- 
dinances authorizing  the  officers  of  the  corporation  to  impound, 
and,  upon  taking  specified  proceedings,  to  sell,  the  property,  are 
penal  in  their  nature,  and  where  doubtful  in  their  meaning  will 
not  be  construed  to  produce  a  forfeiture  of  the  property,  but  rather 
the  reverse.  Thus,  if  the  pound  keeper  sells  without  giving  tlie 
requisite  notice,  or  for  the  full  length  of  time  required, "he  is  lia- 
ble, although  the  owner  sustains  no  actual  injury  from  the  omis- 
sion; or  the  owner  may  treat  the  sale  as  void  and  recover  the 
property.* 

'  '^Knorr  v.  Wagoner,  16  Ind.  414. 

^Butter  V.  Henry,  46  Ohio  St.  273. 

■^Anderson  v.  Worley,  104  lud.  165,  1  West.  Rep.  833;  Barrett  v.  Dolan,  71 
Iowa,  94. 

^  White  V.  Tallman,  26  M".  J.  L.  67;  Willie  v.  Ler;ris,  45  111.  289;  Rounch  v. 
Stetson,  45  Me.  596;  Gihnore  v.  Holt,  4  Pick.  258;  Rounds  v.  Mansfield,  38 
Me.  586;  t-m  th  v.  Gatis,  21  Pick.  55;  1  Dillon,  Mun.  Corp.  216. 


Chap.  XXYI.]  DUTIES  imposed  upon  tii  k  ownkrs  of  animals.    001 

The  burden  is  upon  defendiiiit,  in  an  action  again.st  a  city, 
to  recover  the  vaUie  of  an  animal  which  was  sold  under  an  ordi- 
nance which  provides  for  the  impounding  and  sale  of  animals 
found  running  at  large  in  the  city,  to  show  that  all  the  rerpiire- 
ments  of  the  ordinance,  including  the  posting  of  notices  of  sale, 
were  strictly  complied  with.' 

Officers  must  use  the  public  pound.''  The  marshal  cannot  del- 
egate his  authority  to  others  to  impound  for  him  generally,  and  in 
his  absence,  but  may  have  assistants  to  act  in  concert  with  him.' 

In  New  Hampshire,  if  ci-eatures  are  found  "doing  damage," 
they  may  be  impounded,  and  appraisers  are  to  ascertain  "whether 
any  damage  was  done;"  but  the  statute  contemplates  actual,  and 
not  merely  nominal,  damage,  to  justify  impounding."  Abridge- 
ment of  the  recpiired  notice  for  the  shortest  period  avoids  the  sale, 
aiid  so  does  a  sale,  at  one  bidding,  of  two  animals  having  different 
owners.*  So  actual  knowledge,  by  the  owner  of  the  beasts,  of  the 
impounding  thereof,  is  not  equivalent  to  the  written  notice  re- 
quired by  the  statute," 

f.  Authority  to  Impound  and  Sell  Strayed  Domes- 
tic Animals, 

Towns  in  Colorado  incorporated  under  General  Statutes  and 
under  the  Amendatory  Act  of  1879  have  the  power  to  authorize 
the  impounding  and  summary  sale  of  cattle,  etc.,  found  running 
at  large  contrary  to  ordinance.'' 

The  ordinance  of  Kansas  City  authorizing  the  impounding  of 
cattle  running  at  large  within  the  city  limits  is  applicable  to  the 
territory  annexed  to  the  city  by  extension  of  its  limits.* 

Under  a  city  ordinance  of  the  City  of  Mobcrly,  Missouri,  pro- 
viding for  the  impounding  of  hogs  found  running  at  large,  giving 

^Fort  Smith  v.  Dodson  (Ark.  May  25,  1889)  4  L.  R.  A.  252;  Clark  v.  Lewis, 

35  111.  417;  Coffin  v.  Vincent,  12  Cush.  98;  Mone  v.  Reed,  28  Me.  481. 
'^ Collins  V.  Larkin,  1  R.  I.  219. 
^Jackson  v.  Morris,  1  Denio,  199. 
^Onyood  v.  Green,  33N.  H.  318. 
^ Clark  V.  Leiris,  35  111.  417. 

^Coffin  V.  Field,  7  Cush.  355:  1  Dillon,  Mun.  Corp.  21(3. 
''Brophy  V.  Uyatt,  10  Colo.  223. 
^Kelly  V.  Meeks,  87  Mo.  396,  2  West.  Rep.  507. 


•602  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

five  days  for  the  owner  to  redeem,  and  providing  for  sale  of  the 
impounded  hogs  at  auction  after  three  days'  notice  bj'  hand-bills, 
unless  the  hogs  are  kept  in  the  pound  five  full  days  after  being 
impounded,  and  advertised  three  days  after  the  expiration  of  the 
iive  days'  grace,  the  sale  will  be  unauthorized  and  void/ 

The  township  trustees  may  sell  trespassing  animals  to  pay  dam- 
ages, without  giving  the  owner  notice  of  the  amount  of  damages 
and  demanding  payment.''  The  object  of  such  statutes  is  to  co- 
erce owners  of  domestic  animals  to  keej)  them  within  their  inclos- 
iires.  It  has  no  reference  to  estrays,  but  aj)plies  to  animals  run- 
ning at  large  in  counties  where  there  is  no  order  authorizing  the 
same.*  Statutory  provisions  as  to  impounding  animals  must  be 
strictly  complied  with.'' 

g-  Eights  of  Owner  of  Impounded  Animals. 

The  owner  cannot  legally  break  pound  and  rescue  animals.*  Re- 
plevin does  not  lie  against  a  pound  keej)er,  at  common  law,  while 
the  creatures  are  in  his  legal  custody."  But  it  does  lie  if  he  vol- 
untarily parts  with  his  legal  control  over  them  or  if  he  impounds 
them  in  any  other  places  than  those  prescribed  by  the  law,  as,  for 
example,  in  his  pasture  or  barn,  although  this  be  done  the  more 
conveniently  to  furnish  them  with  food  and  drink.'' 

h.  Municipal  Ordinances  Regarding  Strayed  Do- 
mestic Animals. 

By  virtue  of  its  police  power  a  municipal  corporation  may  pass 
an  ordinance  imposing  a  fine  upon  the  owner  of  any  animal  found 
astray  or  at  large  within  the  limits  of  the  corporation.* 

1  White  V.  Hanwrth,  21  Mo.  App.  439,  4  West.  Rep.  789. 

^Miller  v.  Dale,  73  Iowa,  470. 

^Jones  V.  Glouser,  114  lud.  387,  14  West.  Rep.  286. 

'^Nafe  V.  Leiter,  103  Ind.  138,  1  West.  Rep.  165. 

^Co7n.  V.  Beale,  5  Pick.  514;  Field  v.  Coleman,  5  Cush.   267;  1  Dillon,  Mua. 

Corp.  217. 
«Co.  Litt.  47  b,  145  b;  1  Ohitty,  PI.  159;   Pritchard  v.  Stevens,  6  T.    R.   532; 

Ksley  V.  Stubbs,  5  Mass.  283;  Smith  v.  Huntington,  3  N.  H.  76. 
''Bills  V.  Kinson,  21  N.  H.  448. 
^Third  Municipality  v.  Blanc,  1  La.  Ann.  385;  Case  v.  Hall,  21  111.  633;  Com. 

V.  Bean,  14  Graj%  52;  Com.  v.  Curtis,  9  Allen,  266;  Eoberts  v.  Ogle,  30  111. 

459;  McKee  v.  McKee,  8  B.  Mon.  433;  Waco  v.  Powell,  33  Tex.  258. 


■Chap.  XXYI.]  DUTIES  imposed  upon  the  owners  of  animals.    003 

A  municipal  corporation  witli  power  to  pass  ''  all  by-laws  deeined 
necessary  for  the  well  regulation,  health,  cleanliness,  etc.,"  of  the 
borough,  and  witli  power  to  '"  abate  nuisances,"  is  held  to  have  no 
authority  to  pass  a  by-law  restraining  cattle  from  running  at  Large 
where  such  a  by-law  is  in  contravention  of  the  general  law  of  the 
State.' 

In  Illinois  it  has  been  decided  that  a  town,  authorized  1)V  its 
charter  to  declare  what  should  be  nuisances,  and  to  provide  for 
the  abatement  thereof  by  ordinance,  may  pass  an  ordinance  de- 
<;laring  swine  running  at  large  within  the  corporation  to  be  nui- 
sances, and  providing  for  the  taking  up  of  the  same."  A  by-law 
'  ^prohibiting  swine  running  at  large  in  a  city  is  presumptively  rea- 
-sonable  as  a  sanitary  or  police  regulation.*  The  marshal  must 
•ftrictly  comply  with  the  ordinance,  or  he  becomes  a  trespasser 
from  the  beginning.* 

i.  Damages  for  Trespass  by  Animals  Impounded. 

The  damages  appraisable  for  trespasses  by  swine  are  only  such  as 
liave  been  occasioned  by  the  swine  at  the  time  of  the  trespass  for 
which  they  were  impounded,  and  can  be  determined  by  appraisers 
without  proof  by  witnesses.^ 

A  land  owner  taking  up,  under  the  statute,  swine  running  at 
large,  is  not  barred  from  suing  their  owner  for  injuries  committed 
by  them.* 

i6Mm«v.  Hatch,  18  Ohio,  523;  Canton  v.  Ni»t,  9  Ohio  St.  439. 

'^Roberts  v.  Ogle,  30  III.  4o9. 

^Com.  V.  Bean,  14  Gray,  52;  1  Dillon,  Mun.  Corp.  370. 

*  Adams  V.  Adams,  13  Pick.  384;  Gilmore  v.  ITolt,  4  Pick  259;  Smith.v.  Gates, 

21   Pick.  55;  Sfierman  v.  Braman,  13  Met.  407;  Cojfin  v.  Field,  7  Cush. 

355:  Brightman  v.  Orinnell,  9  Pick.  14;  Field  v.  Jacobs,  12  Met.  118;  'Wild 

V.  Skinner,  23  Pick.  255;  Pickard  v.  Howe.  12  Met.  198;  1  Dillon,  Mun. 

Corp.  217. 
^Warne  v.  Oberly,  50  N.  J.  L.  108,  9  Cent.  Rep.  502. 
^Bobuion  V.  Fettermau  (Pa.  May  14,  1888)  12  Cent.  Rep.  566. 


CHAPTER  XXVII. 

NEGLIGENCE  IN  CONTROL  OF  DOMESTIC  ANIMALS. 

Sec.  79.  Lialility  of  Oioners  of  Animals  for   Their  Trespasses. — 

Scienter.  — A  ccident. 
Sec.  80.   Care  of  Domestic  Aiiimals  under  Special  Circumstances. 
Sec.  81.  Horses  Exposed  in  Public  Places. 

Section  ^l^.— Liability  of  Owners   of  Animals  for 
Their  Trespasses.— Scienter.— Accident. 

The  owner  of  domestic  animals  not  being  liable  at  common  law 
for  injuries  committed  by  tliem,  except  within  another's  close/ 
unless  he  is  supposed  to  have  knowledge  of  their  tendency  to  com- 
mit such  injuries,  or  he  has  been  guilty  of  negligence,^  evidence 
may  be  introduced  as  to  the  propensity  of  the  animal  to  injure 
mankind,  and  as  to  defendant's  knowledge  of  such  inclination,  and 
his  negligence  after  such  knowledge.  It  is  not  necessary  that  the 
vicious  acts  of  a  domestic  animal,  brought  to  the  notice  of  the 
owner,  so  as  to  charge  him  with  having  contributed  to  the  injury 
by  his  negligence  in  not  putting  such  restraint  upon  the  animal  as 
to  prevent  a  repetition  of  his  assault,  should  be  precisely  similar 
to  that  upon  which  the  action  against  him  is  founded.'  If  this 
were  the  rule  there  would  be  no  actionable  redress  for  the  first  in- 
jury of  a  particular  kind  committed  by  such  animal,  for  its  owner 
would  necessarily  be  exempt  from  all  liability  until  it  should  cora- 

^Lylce  V.  Van  Leuven,  4  Denio,  127;  Van  Leuven  v.  Lyice,  1  N.  Y.  515;  Mason 
V.  Morgan,  24  U.  C.  Q.  B.  328;  Wells  v.  Howell,  19  Johns.  385;  Lee  v. 
Pdlerj,  34  L.  J.  N.  S.  C.  P.  212. 

'^Meredith  v.  Reed,  26  Ind.  334;  Dolfinger  v.  Fishhack,  12  Bush,  474;  Frazer 
V.  Eimler,  2  Hun,  514;  May  v.  Bwrdett,  9  Q.  B.  101.  If  negligence  be 
proved  no  proof  of  knowledge  of  the  viciousness  or  even  of  viciousness 
is  necessary.     Lyons  v.  Merrick,  105  Mass.  77. 

^Jenkins  v.  Turner,  1  Ld.  Raym.  109;  Blackman  v.  Simmons,  8  Car.  &  P. 
138;  Thomas  v.  Morgan,  2  Cromp.  M.  &,  R.  496;  Williams  v.  Moray,  74 
Ind.  25,  29;  Congress  &  E.  Spring  Co.  v.  Edgar,  99  U.  S.  645,  25  L.  ed.  487; 
Cockerham  v.  Nixon,  11  Ired.  L.  269. 


Cliap.  XXYII.]       LIABILITY  OF  OWNERS  OF  ANIMALS.  605 

niit  another  injury  of  exactly  like  character.  Neither  is  it  neces- 
sary in  order  to  fasten  the  lial)ility  upon  the  owner  that  he  have 
notice  of  a  previous  injury  to  others." 

"Where  the  class  to  which  a  particular  animal  which  has  inflicted 
an  injury  belongs  is  harndess,  the  owner  can  oidy  be  held  answerable 
by  proof  that  he  was  aware  of  the  inischievons  disposition  of  the 
particular  animal."  The  owner  must  be  shown  to  have  had  notice 
■of  its  vicionsness,  or  to  have  been  wanting  in  the  exercise  of  rea- 
sonable care.'  The  habit  of  an  animal  is,  in  its  nature,  a  continu- 
ous fact,  to  be  shown  by  proof  of  successive  acts  of  a  similar  kin<I/ 

It  is  the  jn-opensity  to  commit  the  mischief  that  constitutes  the 
danger,'  and  therefore  it  is  sufficient  if  the  owner  has  seen  or 
heard  enough  to  convince  a  pian  of  ordinary  prudence  of  the  ani- 
mal's inclination  to  commit  the  class  of  injuries  complained  of." 
It  is  sufiicient  that  the  owner  has  good  reason  to  suppose  that  the 
animal  may  so  act.'  The  question  in  each  case  is  whether  the 
notice  was  sufficient  to  put  the  owner  on  his  guard  and  to  require 
him  as  an  ordinarily  prudent  man  to  anticipate  the  injury  which 
has  actually  occurred.  Hence,  it  is  unnecessarj^  to  prove  more 
than  that  he  has  been  given  cause  for  supposing  that  the  animal 
may  so  conduct  itself.' 

in  Brice  v.  Bauer,  108  K  Y.  428,  11  Cent.  Rep.  327,  it  is  said 
that  the  very  purpose  for  which  the  owner  keeps  a  dog  will  often 
charge  him  with  knowledge  of  his  character,  and  he  will  therefore 
be  chargeable  with  negligently  keeping  him,  although  it  does  not 

^Rider  v.  White,  65  N.  Y.  54;  Qodeau  v.  Blood,  53  Vt.  251;  Worth  v.  GUling 

L.  R.  2  C.  P.  1;  Judge  v.  Cox,  1  Stark.  285. 
^Buxendin  v.  Sharp,  2  Salk.  662;  Cox  v.  Burbridge,  13  C.  B.  N.  S.  430,  32  L. 

J.  N.  S.  C.  P.  f^9;  Mason  v.  Keeling.  1  Ld.  Rayni.  606;  Hudson  v.  Roberts. 

6  Exch.  699,  20  L.  J.  N.  S.  Excb.  2m;- Jackson  v.  SmitJison,  15  Mees.  & 

W.  561. 
^Moj/nakan  V.Wheeler,  117  N.  Y.  285;  State  v.  Donohue,  49  N.  J.  L.  548,  8 

Cent.  Rep.  G21;  Murphy  v.  Preston,  5  Macke}',  514,  9  Cent.  Rep.  146; 

Cox  V.  Murphy,  82  Ga.  623. 
*Eennon  v.  Gilmer,  131  U.  S.  22,  33  L.  ed.  110. 
K\rCa>-kill  V.  Elliott,  5  Strobh.  L.  196. 
^ Rider  v.  White,  65  N.  Y.  54;  Godean  v.  Blond,  52  Yt.  251;   Worth  v.  GUling, 

L.  R.  2  C.  P.  1;  Jtidge  v.  Cox,  1  Stark.  285;  Keightlinger  v.  Egan,  65  111. 

235;  Buckley  v.  Leonard,  4  Denio,  500;  Applebee  v.  Percy,  L.   R.  9  C.  P. 

647. 
•'Kittredge  v.  Elliott,  16  N.  H.  82;  Reynolds  v.  Ilussey,  64  N.  II.  64.  2  2s ew 

Eag.  Rep.  722. 
^Kittredge  v.  Elliott,  16  N.  H.  82. 


606  IMPOSED  DUTIES,  PERSONAL.  [Part  IIL 

appear  that  he  has  actuall)'  bitten  another  person  before  he  bit  the 
phiintiff/  In  Buchley  v.  Leonard,  4  Denio,  500,  an  action  for 
daiiiages  for  injuries  inflicted  by  a  dog,  it  appeared  among  other 
things  "  tliat  for  the  most  part  the  defendant  had  kept  his  dog 
chained  up  in  the  day  time  and  in  his  store  nights,"  and  the  de- 
fendant having  had  a  verdict,  it  was  reversed,  the  court  saying, 
aside  from  the  proof  that  the  defendant  had  notice  of  the  dog's 
disposition,  "  the  fact  that  he  usually  in  the  day  time  kept  him 
confined,  and  in  the  night  kept  him  in  his  store,  is  strong  evidence 
that  he  was  fully  aware  that  the  safety  of  his  neighbors  would  be 
.  endangei'ed  by  allowing  him  to  go  at  large." 

The  question  of  knowledge  by  the  owner  will  often  turn  on 
whether  his  information  of  a  disposition  on  the  part  of  the  animal 
to  do  one  act  should  warn  him  of  the  probability  that  it  would  do 
the  act  which  caused  the  injury  complained  of.  This  must  be  a 
question  of  fact  and  of  reasonable  inference  as  to  whether  the  in- 
jury the  animal  was  disposed  to  commit  was  substantially  like  in 
character  to  the  one  committed.^  Knowledge  that  a  dog  will  worry 
sheep  is  no  notice  that  it  will  attack  mankind;  or  that  a  horse  is 
not  easily  controlled  may  not  indicate  that  he  is  liable  to  bite  or 
kick.^  But  a  boar  accustomed  to  bite  animals  might  be  expected 
to  bite  a  horse,*  If  a  bull  gore  animals  it  may  attack  men.^  If 
a  dog  kill  one  kind  of  animal  it  may  kill  another  species,"  but  it 
is  not  likely  to  attack  men.'  But  if  the  dog  bite  in  play,  it  may 
bite  in  anger; '  for  if  there  is  proof  of  a  disposition  to  do  a  special 
injury,  the  actual   accomplishment  of  it  need  not  be  shown.'    The- 

'Citing  Worth  v.  Gilling,  L.  R.  2  C.  P.  1,  in  which  the  court  says:    "The 

defendants  admitted  that  the  dog  was  purchased  for  the  protection  of 

their  premises.     Unless  of  a  fierce  nature  he  would  hardly  have  been 

useful  for  that  purpose.'' 
^Eeynolds  v.  Hussey,  64  N.  H.  64,  2  New  Eng.  xiep.  722;  Mann  v.  Weiand^ 

81*  Pa.  243. 
^Spray  v.  Ammerman,  66  111.  309;  Hartley  v.  Halhoell,  2  Stark.  212;  Keight- 

linger  v.  Egan,  65  111.  235;  Ttcigg  v.  Eyland,  62  Md.  3«0, 
^Jenkins  v.  Tamer,  1  Ld.  Raym.  109. 

^Earhart  v.  Toungblood,  27  Pa.  331;  Gjckerlmm  v.  Nixon,  11  Ired.  L.  269. 
^ Pickering  v.    Orange,  2   111.  492;   Thomas   v.  Morgan,   2  Cromp.  M.  &  R. 

496. 
"^KeightUnger  v.  Egan,  65  111.  235;  Twigg  v.  Ryland,  62  Md.  380. 
^State  V.  McDermott,  49  N.  J.  L.  163,  4  Cent.  Rep.  559. 
''M'Oaskillv.  Elliott,  5  Strobh.  L.  196;  Flansbarg  v.  Basin,  3  III.  App.  531; 

Worth  V.  Gillirig,  L.  R.  2  C.  P.  1. 


Chap.  XXVII.]        CARE   OF    DOMESTIC    ANIMALS.  607 

question  of  knowledge  is  one  of  fact  for  tlie  jury  to  deterniiiio 
from  the  evidence.' 

An  accidental  injury  will  neither  render  the  owner  responsihle 
nor  constitute  notice  of  an  evil  hahit.^  But  that  the  injury  was 
accidental  will  not  excuse  one  who  keeps  a  vicious  watchdog.' 

Section  SO.— Care  of  'Domestic  Animals  Under 
Special  Circumstances. 

■  Naturally  the  care  of  animals  varies  in  proportion  to  the  man- 
ner in  which  they  are  exposed.  Thus,  a  horse  in  the  street  of  a 
city  must  be  more  carefully  guarded  than  upon  a  country  road.* 
Unless  the  owner  have  notice  of  his  vicious  disposition,  it  is  not 
negligence  per  se  to  permit  him  the  usual  freedom,  even  in  public 
places.*  If  he  have  notice  of  such  habits  as  will  render  the  ex- 
posure dangerous  to  others,  it  is  negligence.' 

One  driving  his  domestic  animals  along  the  public  highway  is 
bound  to  observe  due  care,  and  if,  notwithstanding  he  is  guilty  of 
no  negligence,  they  escape  from  him  and  go  upon  private  grounds, 
he  is  not  responsible,  provided  he  removes  them  within  a  reasona- 
ble time.  And  what  is  a  reasonable  time  must  depend  upon  all 
the  circumstances.' 

In  Leame  v.  Braij,  3  East,  595,  Lord  Ellenborough  said:  "If 
I  put  in  motion  a  dangerous  thing,  as,  if  I  let  loose  a  dangerous 
animal,  and  leave  to  hazard  what  may  happen,  and  mischief  ensue 
to  any  person,  I  am  answerable  in  trespass."  One  who  ]iermits 
his  horse  to  go  at  large  in  the  pul)lic  highway,  although  he  is  not 
vicious,  without  a  keeper,  is  held  guilty  of  negligence  in  Massa- 

^Godeau  v.  Blood,  52  Vt.  251'. 

^Meredith  v.  lieed,  26  Ind.  334;  Jonen  v.  Owen,  24  L.  T.  IST.  S.  587;  Frazer  v. 

Kimler,  2  Hun,  514;  Sanders  v.  Tea:p6,  51  L.  T.  N.  S.  203;  Dolfiuger  v. 

Fullback,  12  Bush,  474. 
^Laverone  v.  Mangianti,  41  Cal.  138. 
*Lynch  v.  Nurdin,  1  Q.  B.  38. 
^Cox  V.  Burbridrje,  13  C.  B.  N.  8.  430;  Bearth  v.  BaJcer,  22  Wis.  73;    Vroo- 

manv.  Lawyer,  13  Johns.  339;  Smith  v.  Causey,  22  Ala.  5(58. 
'Bei/nolds  v.  Ilussey,  64  N.  H.  64,  2  New  Eng.  Rep.  723;  Dickson  v.  McCoy, 

39  N.  Y.  400;  LeForest  v.  Tolman,  117  Mass.  110. 
''Ooodwyny.  Cheveley,  4  Hurl.  &  N.  631;  Cooley,  Torts,  401.     In  Ficken  v. 

Jones,  28  Cal.  018,  the  utmost  care  is  required  in  driving  cattle  in  public 

streets  to  avoid  injury  to  travelers. 


€08  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

chusetts  and  is  responsible  for  its  kicking  and  killing  a  sucking 
colt,  which  was  following  its  dam,  led  by  her  owner  in  the  high- 
way.' 

It  was  ruled  in  Linnehan  v.  Sampson,  l'i6  Mass.  506,  that  in 
order  to  recover  in  an  action  for  injuries  received  from  defend- 
ant's bull,  the  plaintiff  must  prove  that  the  bull  had  such  propen- 
sities, known  to  the  defendant,  as  caused  him  to  be  a  dangerous 
animal  when  led  by  one  person  only,  in  the  day  time,  upon  the 
streets  of  a  city,  in  the  manner  he  was  led;  and  also,  that  it  must 
be  proved  that,  in  thus  leading  the  bull,  the  defendant's  servant 
was  negligent,  in  view  of  the  propensities  of  the  bull  known  to 
the  defendant,  or  of  the  known,  ordinary  and  usual  disposition 
and  propensities  of  such  animals.  It  might  well  be  that,  previ- 
ously to  the  injury,  the  defendant  had  had  no  trouble  in  manag- 
ing the  animal,  and  no  knowledge  of  anything  specially  or  pecu- 
liarly vicious  in  his  habits  or  inclinations.  But  the  jury  may  have 
believed  that  he  knew,  what  is  a  matter  of  common  knowledge, 
that  a  bull  is  an  excitable  and  powerful  animal,  and  that,  if  from 
any  accidental  or  unexjDected  cause  he  should  become  excited  while 
led  or  driven  through  a  public  street,  he  might  be  dangerous.^ 
There  was  testimony  in  that  case  to  the  effect  that  the  defendant 
had  said  that  it  was  careless  so  to  lead  the  bull  through  the  streets, 
and  that  he  ought  to  have  been  tied  behind  a  wagon,  as  he  had 
once  been  before.  The  jury  might  well  have  considered  this  as 
an  admission  that  he  knew  that  the  animal  needed  to  be  kept  un- 
der control,  and  also  that  he  knew  that  the  control  which  his  serv- 
ant had  applied  for  the  purpose  of  leading  him  through  the 
streets  was  insufficient.  In  Lyons  v.  Merrich,  105  Mass.  71,  it 
w^as  held  that  the  owner  or  keeper  of  animals  of  a  vicious  disposi- 
tion or  mischievous  habits,  of  which  the  owner  had  previous  ac- 
tual or  implied  notice,  is  bound  at  his  peril  to  keep  them  at  all 
times  and  in  all  places  properly  secured,  and  is  responsible  to  any- 
one who,  without  fault  on  his  own  part,  is  injured  by  them.  In 
the  case  of  Ilewes  v.  McNamara,  106  Mass.  281,  the  driver  of  a 
cow  through  the  pul)lic  streets  was  guilty  of  negligence  and  was 

^Barnes  \.  67w?«?i,  4  Allen,  444;  McDonald  v.  Siielliny.  14  Allen,  297;  Kel- 
logg V.  Chicago  &  N.  W.  U.  Co.  26  Wis.  280.  See  Waters  v.  3foss,  12  Cal. 
535,  73  Am.  Dec.  561,  note. 

«See  Hudson  v.  Roberts,  6  Exch.  697;  Smith  v.  Matteson,  41  Hun,  216. 


Chap.  XXYII.]       CARE  OF  domestic  animals.  609 

held  liable,  the  scienter  beiag  shown.  And  it  was  said  in  Linne- 
han  V,  Sampson^  supra,  that  if  the  jury  were  satisfied  that  the 
defendant  knew,  or  ought  to  have  known,  that  the  bull  had  dan- 
gerous propensities,  it  is  unnecessary  to  prove  that  on  any  previous 
occasion  he  had  actually  endangered  the  life  or  limb  of  any  person.' 

If  at  certain  seasons  animals  are  more  dangerous  and  more  in- 
clined to  break  the  close,  there  must  be  special  care  at  that  time 
to  restrain  them.  "Greater  care  is  required  to  be  taken  of  a  stal- 
lion than  of  a  mare."  "  If  an  animal  is  inclined  to  jump  over  or 
break  down  lawful  fences  it  must  be  restrained,  and  this  is  the  only 
fence  one  is  bound  to  maintain  under  statutory  provisions.' 

Where  plaintiff  walking  in  a  public  street,  wearing  a  red  hand- 
kerchief, was  gored  by  a  bull,  and  it  was  shown  that  the  owner 
knew  of  the  propensity  of  the  bull  to  run  at  anything  red,  although 
the  animal  was  ordinarily  gentle  and  quiet,  and  was  not  known  to 
have  gored  any  person  previously,  an  action  for  damages  suffered 
was  maintainable.* 

In  an  action  for  personal  injuries  from  a  bull,  it  is  proper  to 
charge  that,  notwithstanding  the  animal  was  not  actually  vicious 
up  to  the  time  of  the  injury,  and  that  defendant  had  no  knowl- 
edge of  any  viciousness,  yet  in  view  of  the  known  and  or- 
dinary propensities  of  such  an  animal,  if  the  manner  of  driving 
and  managing  the  bull  was  negligent,  the  ■  plaintiff  may  recover, 
in  the  absence  of  contributory  negligence  on  his  part.'  "Where  a 
bull  is  not  shown  to  have  vicious  propensities,  but  is  shown  to  be 
wild,  and  to  have  been  tied  head  and  foot  at  the  time  of  the  in- 
jury, and  the  owner  had  notice  that  it  would  be  safer  to  lead  him 
than  to  drive  him,  it  is  for  the  jury  to  say  whether  driving  him 
on  the  highway  was  negligence."  To  give  to  a  mischievous  or 
malicious  animal  the  freedom  of  an  open  field,  with  opi^oriunity 
to  molest  every  person  who  may  have  occasion  to  go  into  or  ])ass 
through  the  field,  is  not  such  confinement  as  the  law  requires.' 

•See  Woi-th  v.  GilUnf],  L.  R.  2  C.  P.  1. 

"^Meredith  v.  Reed,  26  Ind.  334.     See  Congress  <&  E.   Sprinfj  Co.  v.  Edgar,  98 

U.  S.  645,  35  L.  ed.  487;  Mclhaine  v.  Lantz,  100  Pa.  566. 
^Hine  v.  Wooding,  37  Conn.  123. 

*State  V.  McDermott,  49  N.  J.  L.  163,  4  Cent.  Rep.  559. 
*  ^Barnum  v.  Terpening,  75  Mich.  557. 
''Oraham  v.  Payne,  122  Ind.  4U3. 
39 


610  IMPOSED   DUTIES,  PERSONAL.  [Part    III. 

Evidence  of  several  witnesses  that  a  ram  had  attempted  to  butt 
persons,  and  of  one  witness  that  the  animal  butted  him  and  he  so 
informed  the  owner,  is  sufficient  to  show  notice  of  the  animal's 
propensities.* 

Section  SI.— Korses  Exposecl  in  Public  Places. 

Evidence  having  been  first  offered  to  show  that  a  horse  has  been 
restive  and  unmanageable  previous  to  the  occasion  in  question^ 
testimony  that  he  subsequently  manifested  a  similar  disposition  is 
competent  to  prove  that  his  previous  conduct  was  not  accidental 
or  unusual,  but  the  result  of  a  fixed  habit  at  the  time  of  the  acci- 
dent.' 

In  an  action  for  injury  to  the  plaintiff  by  the  defendant's  horse 
striking  him  with  its  fore  feet,  proof  that  the  defendant  had 
knowledge  that  the  animal  was  of  a  vicious  disposition  and  "  a 
notorious  kicker"  was  suflicient  to  authorize  a  conclusion  by  the 
jury  that  the  defendant  had  sufficient  knowledge  of  its  vicious 
nature  and  propensity  to  make  him  liable  for  its  subsequent  attack 
on  plaintiff  in  consequence  of  that  nature  and  propensity;'  and  if 
the  owner  know  the  horse  to  be  frisky  and  playful,  and  inclined 
to  throw  out  his  heels  in  mere  wantoimess,  he  will  be  liable  for  ex- 
posing the  public  to  injury,  as  by  leading  two  nervous  and  playful 
horses  through  the  street  by  one  halter.^ 

It  is  not  an  essential  element  of  culpable  negligence  that  the 
defendant  should  have  anticipated  that  his  carelessness  would  have 
injured  another.*  The  question  is  not  what  he  knew  or  antici- 
pated, but  what  he  was  bound  to  know."  One  in  charge  of  a 
horse  is  bound  to  know  and  act  in  reference  to  the  generic  qual- 
ities of  horses,  and  hence  he  is  bound  to  anticipate  that  his  horse 
might  and  probably  would  become  frightened  and  run  if  Le  left 

^Graham  V.  Payne,   123  Ind.  403. 

^Kennon  v.  Gilmer,  131  U.  S.  22,  33  L.  ed.  110. 

^Reynolds  v.  Russey,  64  N.  H.  64,  2  New  Eoiz;.   Rep.  723;   LeForest  v.  Tol- 

man,  117  Mass.  110;  Dickson  v.  McCoy,  39  N.  Y.  400. 
*Pickens  v.   Diecker,  21  Ohio  St.  212.     See  Dickson  v.  McCoy,  39  N.  Y. 

400. 
^Stebbins  v.  Walker,  46  Mich.  5. 
^Submarine  Tel.  Co.  v.  DLcon,  15  C.  B.  K  S.  759;  Hill  v.  Fi/iwr,  118  Mass. 

251;  Dygert  v.  Bradley,  8  Wend.  469;  Pittsburgh  v.  Grier,  22  Pa.  54. 


Cliap.  XXYII.]       HORSES    EXPOSED    IN    TUBLIC   PLACES.  611 

him  unrestrained.'  If  defendant  knows  his  horse  is  exceptionally 
qnick  and  speedy,  he  is  bound  to  provide  against  sudden  starting, 
as  by  tlie  intervening  act  of  third  persons,  such  as  snapping  a  whip,* 
or  by  falling  icicles,"  or  by  being  struck  by  a  passer-by,*  or  by 
dangerous  instruments  being  removed  from  the  road.'  But  if 
the  horse,  notwithstanding  due  care,  become  uncontrollable,  the 
owner  is  not  responsible.' 

Wliere  the  plaintiff  left  a  highly  spirited  horse  unhitched  and 
unattended  in  a  public  street,  and  defendant  in  passing  with  his 
horse  and  carriage  jostled  plaintiff's  carriage,  causing  the  plaintiff's 
horse  to  run  away,  overturning  his  carriage,  while  it  was  held  tliat 
the  court  properly  refused  to  charge  the  jury  that  the  plaintiff  was 
guilty  of  negligence  as  a  matter  of  law  in  leaving  so  highly  spir- 
ited a  liorse  in  the  public  street  unhitched  and  unattended,  yet  on 
appeal  it  was  said,  in  affirming  the  doctrine,  that  the  burden  of 
proof  is  upon  the  plaintiff  to  show  that  the  injury  occurred  with- 
out contributory  negligence  on  his  part,  and  that,  as  the  defendant 
had  a  right  to  have  the  jury  informed  as  to  what  facts  the  plaintiff 
must  prove  in  order  to  recover,  he  had  a  right  to  require  the  court 
to  instruct  them  that  it  was  incumbent  on  the  plaintiff  to  prove  a 
want  of  such  concurring  negligence  on  his  part.''  And  in  affirm- 
ing the  rule  in  Dexter  v.  21cCready,  54  Conn.  171,  2  New  Eng. 
Rep.  83S,  it  is  said  that  the  defendant  was  bound  to  consider,  in 
the  means  adopted  to  prevent  the  escape  of  his  horse,  not  only  the 
character  and  disposition  of  his  horse  and  the  fact  that  he  was  in 
the  public  street,  but  to  anticipate  what  might  reasonably  liappen 
in  such  a  place,  the  liability  of  noises  and  occurrences  at  which 
his  horse  might  be  startled  and  the  danger  to  the  persons  and 
property  of  those  passing,  or  who  would  be  likely  to  be  passing  or 
driving,  in  the  streets,  should  his  horse  escape. 

Even  if  the  whole  risk  were  upon  the  owner  it  would  still  be 
i-ash  folly  for  him  to  omit  the  usual  precaution  of  hitching  his 

^Goodman  v.  Oay,  15  Pa.  194. 

^McCahUl  V.  Eipp,  2  E.  D.  Smith,  413. 

^Bigelow  v.  Reed,  51  Me.  325. 

*lllklge  V.  Goodwin,  5  Car.  &  P.  192. 

^Clark  V.  Chambers,  L.  R.  3  Q.  B.  Div.  327.     See  also   Duniels  v.   Potter,   4 

Car.  &  P.  202;  BUI  v.  Smith,  39  Conn.  212. 
^Sullivan  v.  Scripture,  3  Allen,  5fj4;  Goodman  v.  Taylor,  5  Car.  it  P.  410. 
''Fark  v.  O'Brien,  23  Conn.  339. 


612  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

horse  or  its  equivalent,  and  when  such  omission  is  a  menace  to 
both  life  and  property,  it  is  extreme  recklessness,' 

The  owner  of  a  horse  which  is  left  loose  in  a  busy  street  is  lia- 
ble to  one  injured  by  him  while  running  away,  although  his  fright 
was  caused  by  the  intervention  of  the  third  parties  who  attempted 
to  capture  him.  That  the  owner  stood  watching  his  horse  from 
the  distance  of  five  or  six  feet  will  not  excuse  his  negligence  in 
leaving  him  unfastened."  If  a  man  chooses  to  leave  a  cart  stand- 
ing in  the  street,  he  must  take  the  risk  of  any  mischief  that  is 
■done.'  If  the  horse  do  not  run  away,  the  question  of  negligence 
in  leaving  him  unhitched,  where  he  does  an  injury,  is  for  the  jury, 
although  courts  sometimes  hold  it  negligence  in  law  where  the 
horse  runs  away.*  It  is  an  act  of  negligence  for  a  hack  driver  to 
stand  by  the  door  of  his  hack  reading  a  newspaper,^  or  for  a  driver 
in  unloading  to  leave  his  horse  loose  in  the  street.*  The  fact 
alone  that  a  horse  was  permitted  to  escape,  unexplained,  has  been 
held  in  several  States  and  in  England  to  amount  to  proof  of  neg- 
ligence.'    But  if  proper  care  be  shown  there  will  be  no  liability.' 

An  allegation  that  injury  occurred  to  plaintiff  from  defendant's 
horse  in  consequence  of  its  being  negligently  hitched  by  defend- 
ant's servant  is  sufficient.  The  propensity  of  the  horse  to  break 
away,  and  the  knowledge  of  the  defendant,  are  not  necessary  aver- 
ments, but  matters  of  evidence  to  show  negligence.'  On  the  ques- 
tion of  his  liability  for  negligence  in  permitting  his  horse  to  injure 

^Barton  v.  St.  Louis  &  I.  M.  R.  Go.  52  Mo.  253;  McGahill  v.  Eipp,  2  E.  D. 
Smith,  413;  Greenleaf  v.  Illinois  Gent.  B.  Go.  29  Iowa,  14;  Michael  v. 
Alestree,  2  Lev.  172;  Overingto7i  v.  Dunn,  1  Miles,  39;  Bill  v.  Smith.  39 
Conn.  211;  Norris  v.  Kohler,  41  N.  Y.  42;  Siemers  v.  Essen,  54  Cal.  418. 

^Phillips  V.  De  Wald,  79  Ga.  733. 

miidge  v.  Goodwin,  5  Car.  &  P.  192;  Clark  v.  Ghamhers,  L.  R.  3  Q.  B.  Div. 

327;  Lanev.  Atlantic  Works,  111  Mass.  141;  TJwmas  Y.Winchester,  6  N. 

Y.  397. 
*Park  V.  O'Brien,  23  Conn.  339;Illidge  v.  Goodwin,  5  Car.  &  P.  190;  Norris 

V.  KoMer,  41  N.  Y.  42;  Albert  v.  Bleecker  St.  B.  Go.  2  Daly,  389;  Matson 

V.  Maupin,  75  Ala.  312. 

f-Oray  v.  Second  Ave.  B.  Go.  65  N.  Y.  561. 
^Western  U.  Tel.  Go.  v.  Quinn,  56  III.  319. 
"^ Scott  V.  London  Dock  Co.  34  L.  J.  N.  S.  Exch.  17,  220;  Briggs  v.  Oliver,  35 

L.  J.  N.  S.  Exch.  163;  Moffatt  v.  Bateman,  L.  R.  3  C.  P.  115;  Curtis  v. 

Bochester  &  S.  B.  Co.  18  N.  Y.  534;  Fallon  v.  O'Brien,  12  R.  I.  518. 

8  Weldon  v.  Harlem  B.  Go.  5  Bosw.  576. 

^Bumsey  v.  Nelson,  58  Vt.  590,  2  New  Eag.  Rep.  63. 


Chap.  XXYIL]     horses  exposed  in  public  places.  613 

another,  it  is  no  matter  whether  tlie  defendant  was  or  was  not  an 
experienced  horseman.' 

Even  where  the  law  declares  the  fact  that  a  horse  is  loose  on 
the  street  prima  facie  evidence  of  negligence  in  the  owner,  the 
escape  of  a  horse  without  fanlt  from  the  owner,  or  nnreasonable 
delay  in  his  recapture,  will  not  render  the  owner  liable  for  the  in- 
jury of  a  child  on  the  street  by  the  horse.' 

^King  v.  McDermott,  2  Phila.  175;  Tcnney  v.  Tuttle,  1  Allen,  185;  Ilays 
V.  Millar,  77  Pa.  238;  Doorman  v.  Jenkins,  2  Ad.  &  El.  256;  Mertg  v. 
Detweiler,  8  Watts  &  S.  376. 

^Falion  V.  O'Brien,  13  R.  I.  518. 


CHAPTEE  XXVIII. 

DOGS— LIABILITY  OF  OWNER. 

Sec.  82.  Duties  Imposed  upon  Otv7iers  of  Dogs. 

a.  Freedom  of  the  Streets. — Master  not  Liable  for  Tres^yass  of 

Dog  on  Close. 

b.  Oioner  of  Vicious  Dog. — Ground  of  Liability. 

c.  Necessary  Averments. — Proof  of  Scienter. 

d.  Harborer  of  Dog. —  Unlawful  Possession  of  Animal. 

e.  Wlien  the  Knowledge  of  Servant  luill  Charge  Master. 
Sec.  83.  Protection  of  Property  in  Dogs. 

Sec.  84.  License  or  Tax  upon  Dogs. 

Section  82.— Duties  Imposed  upon  Owners  of  Dogs. 

a-  Freedom  of  the  Streets.— Master  not  Liable  for 
Trespass  of  Dog  on  Close. 

The  practice  of  permitting  dogs  to  run  at  large  in  our  streets 
and  highways  has  so  long  and  so  universally  prevailed,  without 
holding  the  owner  liable  for  any  injury  which  he  had  no  reason 
to  believe  they  would  commit,  that  it  would  create  great  surprise 
if  such  action  were  treated  as  evidence  of  negligence.  In  Mason 
v.  Keeling,  12  Mod.  332,  Lord  Holt  said  that  the  law  takes  notice 
that  a  dog  is  not  of  a  fierce  nature,  but  rather  the  contrary.  Dogs 
upon  a  farm  are  presumed  not  to  be  vicious  or  have  bad  and  dan- 
gerous habits.' 

In  State  v.  Donohue,  49  X.  J.  L.  548,  8  Cent.  Rep.  621,  it  was 
ruled  that  the  fact  that  the  owner  of  a  dog  permitted  him  to  be  at 
large  on  the  public  street,  lying  unmuzzled  on  the  sidewalk  on  a 
dark  night,  when  he  sprang  upon  the  plaintiff,  who  was  passing, 
and  bit  her,  will  not,  in  itself,  render  the  owner  liable  without 
proof  of  scienter.  Under  the  authority  of  Durant  v.  Palmer,  29 
IST.  J.  L.  544,  it  may  be  that  if  the  plaintiff,  while  on  her  way  in 

^Shaw  V.  Craft,  37  Fed.  Rep.  817. 


Chap.  XXYIII.]       DUTIES  IMPOSED  UPON  OWNERS  OF  DOGS.  C15 

the  public  street,  had  unavoidably  fallen  over  the  dog  and  injured 
herself,  the  owner  of  the  dog  would  be  lial:)le  in  damages  for  such 
injury.'  But  whether  he  is  liable  for  damages  inflicted  by  the 
biting  of  the  dog  must  depend  upon  proof  of  scienter.* 

Horses,  cattle  and  sheep  feed  upon  herbage  and  destroy  trees 
and  shrubs,  and  must  be  kept  from  another's  land,  but  no  case  can 
be  found  where  the  owner  of  a  dog  has  been  held  in  an  action  of 
trespass  where  his  dog  went  upon  the  premises  of  another  without 
his  consent.  Thus,  in  Scmders  v.  Teape^  51  L.  T.  N.  S.  263,  the 
owner  of  a  dog  was  held  not  lial^le  for  the  trespass  of  his  dog  in 
leaping  over  the  boundary  wall  upon  another's  field  and  falling 
upon  the  plaintiff  digging  in  a  pit.  The  owner  was  likewise  ex- 
cused in  Brown  v.  Giles,  1  Car.  &  P.  118,  where  his  dog  killed  a 
dog  of  the  owner  of  the  land  on  which  he  trespassed.  But  the 
contrary  was  ruled  in  Chunot  v.  Larson,  43  "Wis.  536,  where  the 
dog  bit  a  cow  on  its  owner's  premises. 

Beckwith  v.  Shordike,  4  Burr.  2092,  was  placed  upon  the  ex- 
press ground  that  the  owner  of  the  dog  was  himself  a  trespasser 
with  his  dog  in  the  plaintiff's  close  at  the  time  the  damage  was 
done,  so  that  the  jury  had  a  right  to  find  that  the  act  of  the  dog 
was  the  voluntary  trespass  of  the  master.' 

b.  Owner  of  Vicious  Dog.— Ground  of  Liahility. 

The  owner  of  a  dog  known  to  be  vicious  has  a  right  to  keep 
bim,  if  he  exercises  proper  care  and  diligence  to  secure  him  so 
that  he  will  not  injure  anyone  who  does  not  unlawfully  provoke 
or  intermeddle  with  him."  Of  course  this  cannot  include  an  ani- 
mal of  so  ferocious  and  untamed  nature  that  his  escape  involves 
a,bsolute  peril  to  life,  unless  it  be  such  as  are  kept  for  pari)oses  of 
public  instruction  in  public  parks  or  pUices  of  exhibition.'  There 
the  end  may  justify  the  risk  incurred,  if  the  care  be  in  proportion 
to  the  risk.     But  one  may  certainly  protect  his  premises  by  a  dog 

'  But  see  Jones  v.  Otoen,  24  L.  T.  N.  S.  587. 

■Beck  V.  Dynon,  4  Camp.  199;  Hogan  v.  Sharpe,  7  Car.  &  P.  755. 

2See  Read  v.  Edwards,  17  C.  B.  N.  S.  245;  Oree7i  v.  Doj/le.  21  111.  App.  205. 

So  if  he  sent  his  dog  to  aunoy  his  neighbor's  cattle.     Mitten  v.  Faadrye, 

Poph.  61. 
*Wort?ien  v.  Love,  60  Vt.  285,  6  New  Eng.  Rep.  655. 
*But  see  Brice  v.  Bauer,  108  N.  Y.  428.  11  Cent.  Rep.  327. 


616  IMPOSED  DUTIES,  PERSONAL.  [Part   III. 

sufficiently  resolute  for  this  purpose  and  repel  intruders  without 
imperiling  their  person  seriously.' 

A  man  may  keep  a  dog  for  the  necessary  defense  of  his  house, 
his  garden  or  his  fields,  and  may  cautiously  use  him  for  that  pur- 
pose in  the  night  time;  but  it  is  said  that  if  he  permit  a  mischiev- 
ous dog  to  be  at  large  on  his  premises,  and  a  person  is  bitten  by 
him  in  the  day  time,  the  owner  is  liable  in  damages,  though  tlie 
person  injured  be  at  the  time  trespassing  on  the  grounds  of  the 
owner,  by  hunting  in  his  woods  without  license.  It  appears  from 
the  authorities  that  a  person  is  not  permitted,  for  the  protection, 
in  his  absence,  of  property  against  a  mere  trespasser,  to  use  means 
endangering  the  life  or  safety  of  a  human  being,  whatever  he  may 
do  where  the  entry  upon  his  premises  is  to  commit  a  felony  or 
breach  of  the  peace;  and  where  such  means  are  used  the  nature 
and  value  of  the  property  sought  to  be  protected  must  be  such  as 
to  justify  the  proceeding.  For  purposes  of  ordinary  protection 
against  intrusion,  full  notice  of  the  danger  to  be  encountered  must 
be  given,  and  one  that  can  be  understood,  for  a  printed  notice  will 
not  be  sufficient  for  one  not  able  to  read;^  and  the  principles  of 
humanity  must  not  be  violated,  or  the  owner  will  be  subjected  to 
damages  for  any  injury  which  ensues.^ 

The  fact  that  the  owner  of  a  vicious  dog  left  at  large  may  have 
been  able  to  control  the  animal  by  calling  him  off  when  he  ran 
out  at  persons  will  not  relieve  or  excuse  him  from  a  charge  of 
negligence  where  other  facts  are  proved  requiring  him  to  restrain 
the  dog.* 

It  has  indeed  been  said  that  the  gist  of  the  action  for  injury 
from  an  animal  known  to  be  inclined  to  be  vicious  is  the  wrong 
in  keeping  the  animal  after  such  knowledge.^  It  is  said  that 
where  an  animal  is  accustomed  to  injure  persons  and  the  owner 
has  notice  or  knowledge  of  that  fact,  he  is  liable  for  any  injury 

^Muller  V.  McKesson,  73  N.  Y.  195;  Woolf  v.  Chalker,  31  Conn.  121;  Brock 
V.  Copeland,  1  Esp.  203;  Amick  v.  O'Hara,  6  Blackf.  258;  Davis  v.  Camp- 
bell, 23  Vt.  236;  Tiffts  v.  Tiffts,  4  Denio,  175;  Wood  v.  La  Eue,  9  Mich. 
158. 

^Sarch  v.  Blackburn,  4  Car.  &  P.  296.  See  Montgomery  v.  Koester,  35  La. 
Ann.  1091. 

^Loomis  V.  Terry,  17  Wend.  496. 

*Dockerty  v.  Flatson  (Ind.  Sept.  18,  1890)  25  N.  E.  Rep.  144. 

^Partlow  V.  Haggarty,  35  Ind.  178. 


Chap.  XXYIII.]     DUTIES  imposed  upon  owners  of  dogs.  017 

which  such  animal  may  do  to  another  person  rightfully  in  the  lo- 
cality,' and  that  a  person  who  keeps  an  animal,  after  a  knowledge 
of  its  vicious  disposition,  is  liable  for  such  injury  as  it  may  do, 
without  reference  to  any  specific  negligence  in  its  custody/  But 
these  statements  of  the  law  are  not  strictly  accurate,  unless  in  case 
of  a  ferocious  and  dangerous  animal  kept  for  no  lawful  purpose; 
for  a  negligent  failure  to  keep  the  animal  safely,  so  tliat  he  cannot 
injure  anyone  lawfully  at  the  place  of  injury,  is  the  true  founda- 
tion of  the  liability.  For  if,  without  fault  of  the  owner,  the  ani- 
mal be  released  by  another,  the  owner  is  not  liable.'  In  a  suit  to 
recover  for  the  injuries  received  from  a  vicious  dog, where  defend- 
ant admitted  that  he  knew  of  the  dog's  propensities,  and  attempted 
to  show  that  he  kept  him  securely  fastened,  evidence  that  the  dog 
had  been  so  insecurely  chained  that,  only  a  few  days  before  the  in- 
jury of  the  plaintiff,  the  dog,  when  unprovoked,  broke  away  from 
its  fastenings  and  injured  the  witness'  young  daughter  when  pass- 
ing on  the  street,  and  that  this  was  known  to  the  defendant,  was 
properly  admissible  as  tending  to  impeach  the  credibility  of  the 
defendant  as  a  witness  who  had  testified  to  his  keeping  the  dog 
securely  fastened.* 

The  very  purpose  for  which  the  owner  keeps  the  dog  may 
charge  him  with  knowledge  of  his  character,  and  he  will  be 
chargeable  with  negligently  keeping  him,  although  it  is  not  in 
proof  that  the  dog  had  actually  bitten  another  person  before  he  bit 
the  plaintiff.^  In  the  case  cited,  the  court  said  that  the  condition 
of  the  defendant  is  that  of  one  who  has  in  his  possession  and  un- 

^ Marble  v.  Ross,  124  Mass.  44;  Keenan  v.  Chitta  Percha  &  R.  Mfg.  Co.  46 
Hun,  544;  Partlow  v.  Haggarty,  35  Ind.  178;  Arnold  v.  Norton,  25  Conn. 
92;  FaircUld  v.  Bentley,  ao  Barb.  147;  Logue  v.  Sink,  4  E.  D.  Smith,  63; 
Buckley  v.  Leonard,  4  Denio,  500;  KeighUinger  v.  Egan,  65  111.  235;  Lave- 
rone  v.  Mangianti,  41  Cal.  138,  10  Am.  Rep.  269;  SJierfeyv.  Bartley,  4 
Sneed,  58;  M'CaskiU  v.  EUiot,  5  Strobh.  L.  19Q;Meibus  v.  Bodge,  38  Wis. 
300,  20  Am.  Eep.  6;  Smith  v.  Pelah,  2  Strange,  1264;  Stiles  v.  Cardif 
Steam  JSlav.  Co.  33  L.  J.  N.  S.  Q.  B.  311;  Oa/cesy.  Spaulding,  40  Vl. 
347. 

'^Popplewell  V.  Pierce,  10  Cash.  509;  Koney  -v.Ward,  2  Daly,  295;  Stumps  v. 
Kelley,  22  111.  140;  Kittredge  v.  Elliott,  16  N.  H.  77;  Kelly  v.  Tilton,  2 
Abb.  App.  Dec.  495,  3  Keyes,  263;  Earhart  v.  Youngblood,  27  Pa. 
331. 

^Meredith  v.  Reed,  26  Ind.  334;  Fleming  v.'  On;  2  Macq.  H.  L.  Cas.  14.  See 
Brooks  V.  Taylor,  65  Mich.  208,  8  West.  Rep.  188. 

*Wort7ien  v.  Love,  60  Vt.  285,  6  New  Eng.  Rep.  655. 

^Brice  v.  Bauer,  108  X.  Y.  428,  11  Cent.  Rep.  327. 


'61S  IMPOSED    DUTIES,  PERSONAL.  [Part  III. 

der  his  control  an  animal  (a  watch  dog),  dangerous,  unless  reason- 
able precautions  are  taken  to  prevent  injury  to  third  persons.  In 
such  case,  it  is  obvious  the  injurj  must  have  occurred  by  his  neg- 
lect, and  for  the  consequences  he  must  be  held  responsible.'  The 
animal  that  escaped  from  his  chain  in  Brice  v.  Bauer',  above 
cited,  and  which  attacked  the  plaintiff  on  his  own  premises,  while 
he  was  defending  his  pigs  from  the  dog's  attack,  was  of  unusual 
size,  large,  solid  and  heavy,  having  a  short,  thick  neck,  being  a 
cross  between  a  mastiff  and  a  blood  hound  or  jSTewfoundland,  and 
was,  in  fact,  very  ferocious.  The  owner  kept  half  a  dozen  such 
dogs,  always  in  chains,  he  said,  day  and  night.  "At  night  tied 
•out  of  the  buildings,  in  the  day  time  in  the  house — never  un- 
chained." This  was  an  extreme  case.  The  dog  was  of  a  savage 
breed  and  shown  to  be  in  fact  ferocious  and  of  a  size  and  strength 
unusual,  and  he  escaped  from  control  and  trespassed  upon  the 
plaintiff's  premises  and  attacked  him  furiously,  attempting  to  reach 
his  throat,  and  in  fact  pulling  him  to  the  ground,  and  as  the  plain- 
tiff protected  his  throat  by  his  arms,  bit  him  "  seven  times  on  one 
arm  and  five  on  the  other,"  and  kept  his  hold  in  spite  of  the  plain- 
tiff's struggles,  and  every  effort  on  the  part  of  neighbors,  who, 
hearing  the  plaintiff's  cries,  had  come  to  his  assistance,  until  one 
having  a  gun  shot  the  dog  dead  as  he  was  making  for  the  plain- 
tiff's throat.  He  had  before  bitten  the  defendant's  coachman  and 
his  wife.  And  although  the  defendant  kept  half  a  dozen  such 
-dogs,  no  sug-o-estion  is  made  of  neo-lio-ence  in  this  act,  but  the  en- 
tire  liability  is  placed  before  the  jury  and  on  appeal  as  a  question 
of  whether  "  reasonal)le  precautions  are  taken  to  prevent  injury  to 
third  persons,"  and  if  this  was  not  done,  "  in  such  case  it  is  obvi- 
ous the  injury  must  have  occurred  by  his  neglect,  and  for  the  con- 
sequences he  should  be  held  responsible." 

When  knowledge  of  the  vicious  disposition  of  the  animal,  and 
that  he  was  kept  after  such  knowledge,  is  shown,  negligence  may 
be  implied  from  the  failure  to  keep  him  safely,  in  the  absence  of 
any  proof  of  any  unlawful  intervention  of  a  third  party.^  Per- 
haps it  is  proper  to  say  that  the  injury  from  such  an  animal,  thus 

'Citing  Muller  v.  McKesson,  73  N.  Y.  195. 
*  Williams  v.  Moray,  74  Ind.  25. 


dliap.  XXVIII.]      DUTIES  IMPOSED  UPOX  OWNERS  OF  DuGS.  (U9 

kept,  is  prima  facie  evidence  of  negligence.'  Whore  tlie  owner 
was  held  liable  for  an  injury  to  one  who  fell  through  a  defective 
step,  into  a  place  where  a  savage  dog  was  chained,  the  fault  was 
clearly  the  keeping  the  dog  in  a  place  thus  liable  to  be  invaded 
without  fault  in  the  intruder.*  Doubtless  the  duty  is  to  keep  the 
animal  so  that  no  injury  shall  occur  without  the  active  interfer- 
ence of  some  third  party  or  the  contributory  negligence  of  the 
person  injured,  and  a  failure  to  do  this  is  negligence,  for  care  must 
be  proportioned  to  the  danger  involved.'  If,  without  contributory 
fault  on  the  part  of  the  master  or  his  dog,  the  latter  is  attacked 
and  injured  by  another  savage  dog,  the  master  of  the  latter  may 
be  liable.^ 


c.  JYecesscivy  Avermeiits.— Proof  of  Scienter. 

Knowledge  of  the  owner  that  the  animal  is  vicious  is  sufficient 
without  proof  that  it  had  ever  bitten  anyone.*  But  proof  that  a 
dog  would  bite  animals  will  not  authorize  proof  that  it  would 
likely  bite  a  man.^     A  single  act  will  charge  the  owner  with  knowl- 

^Rirler  v.  White.  65  N.  Y.  54;  Brooks  v.  Taylor,  65  Mich.  208,  8  West 
Rep.  188;  May  v.  Burdett,  9  Q.  B.  101;  Lynclie  v.  McNally,  7  Daly, 
lao,  73  N.  Y.  347;  Wheeler  v.  Brant,  33  Barb.  334;  KUtredge  v.  Elliott, 
16  N.  H.  77;  Brown  v.  Carpenter,  36  Vt.  638;  Muller  v.  M-Kesson,  73  N. 
Y.  195;  Popplewell  v.  Pierce,  10  Cush.  509;  Sttimps  v.  Kelley,  33  111.  140; 
Jackson  v.  Sinithson,  15  Mees.  &  W.  563;  Smith  v.  Pelah,  3  Strange.  1364; 
Eeed  v.  Edwards,  17  C.  B.  N.  S.  345;  Hagan  v.  Sharpe,  7  Car.  &  P.  755; 
Marsh  v.  Jones,  31  Vt.  378. 

^Laverone  v.  Mangianti,  41  Cal.  138. 

^Earhart  v.  Youngblood,  27  Fa..  331;  Pickens  v.  Diecker,  21  Ohio  St.  313; 
Woolfv.  C'hatker,  31  Conn.  131;  Lootnis  v.  Terry,  17  Wend.  496:  Tl'idwn 
V.  Roberts,  6  E.xch.  695-699.  30  L.  J.  N.  S.  Exch.  399;  Li/nrh  v.  McNally, 
7  Daly,  130,  73  N.  Y.  347;  Sareh  v.  Blackburn,  4  Car.  &  P.  397;  Sherfey  v. 
Bartley,  4  Sneed,  58;  Kelly  v.  Tilton,  3  Keyes,  363;  Wheeler  v.  Brant.  38 
Barb.  '624^;  Black  man  v.  Simmons,  3  Car.  &  P.  138;  Stumps  y.  Kelley,  33111. 
140;  Jackson  v.  Smithson,  15  Mees.  &  W.  563. 

■*Wiley  V.  Slater,  33  Barb.  506;  Wheeler  v.  Brant,  33  Barb.  324. 

^Bider  v.  White,  65  N.  Y.  54,  33  Am.  Rep.  600;  Oodeau  v.  Blood,  53  Yt.  251, 
36  Am.  Rep.  751;  Hartley  v.  Ilarriman,  1  Barn.  &  Aid.  630:  Cropper  v. 
Matthews,  2  Sid.  137;  Judge  v.  Cox,  1  Stark.  337;  Blackman  v.  Simmons, 
3  Car.  &  P.  13S;  Jenkins  v.  Turner,  1  Ld.  Raym.  109;  Jackson  v.  Smith- 
son,  15  Mees.  &  W.  563;  Hudson  v.  Roberts,  6  Exch.  697;  May  v.  Burdett, 
9Q.  B.  101;  Reynolds  v.  Hus^ey,  64  N.  H.  64.  3  New  Eng.  Rep.  733; 
Williams  v.  Moray,  74  Ind.  25;  Congress  &  E.  Spring  Co.  v.  Edg<ir,dd  U. 
S.  465,  35  L.  ed.  487;  Oaks  v.  Spaulding,  40  Vt.  347. 

*Keighilinger  v.  Egan,  65111.  235;  Twigg  v.  Ryland,  63  Md.  330. 


620  IMPOSED   DUTIES,  PERSONAL.  [Part   III, 

edge  of  such  a  propensity  which  subsequent  good  conduct  cannot 
obliterate.' 

Where,  in  a  suit  against  the  owner  of  a  dog  which  had  bitten 
the  plaintiff,  the  fact  that  she  had  been  bitten  had  been  continu- 
ously denied  and  numerous  witnesses  called  by  the  defendant  who 
testified  that  they  were  present  and  saw  no  bite,  the  testimony  of 
another  witness  that  she  was  attacked  and  bitten  by  the  same  dog 
before  the  plaintiff  was  bitten,  or  subsequently,  was  admissible.*- 

That  a  horse  kicks  without  special  provocation  creates  a  pre- 
sumption that  that  is  his  habit.^  That  a  dog  was  usually  chained 
is  evidence  that  it  is  considered  dangerous  if  permitted  to  go  at 
large.''    And  the  jury  may  form  their  judgment  from  seeing  the  dog.^ 

The  keeping  of  an  animpl  accustomed  to  attack  and  injure  man- 
kind with  knowledge  of  such  fact  is  a  sufficient  allegation  of  neg- 
ligence without  any  direct  averment  of  such  want  of  care."  It  is 
not  necessary  to  allege  tlie  place  of  keeping;  the  fact  of  keeping 
is  sufficient.  Nor  is  it  customary  or  usual,  in  any  of  the  forms 
used  in  text  books  or  in  cases  of  injuries  by  mischievous  or 
vicious  animals,  to  allege  negligence  on  the  part  of  defend- 
ant.' It  has  been,  on  the  contrary,  almost  uniformly  held  that  it 
is  only  necessary  to  allege  the  ferocity  of  the  animal  and  the 
knowledge  of  the  owner.  The  negligence  consists  in  not  securely 
keeping  such  an  animal  after  notice,  and  whoever  keeps  an  animal 

^ Arnold  Y.  Norton,  25  Conn.  92;  Judge  v.  Cox,  1  Stark.  227;  Buckley  v.  Leon- 
ard, 4  Denio,  500;  Charhcood  v.  Greig,  3  Car.  &  K.  46;  Mann  v.  Weiand, 
81*  Pa.  255 ;  Simson  v.  London  General  Omnibus  Co.  L.  R.  8  C.  P.  390. 

^Fitzgerald  v.  Dobson,  78  Me.  559,  3  New  Eng.  Rep.  394;  Kennonv.  Gilmer, 
5  Mont.  257.  See  Com.  v.  Merriam,  14  Pick.  518;  Com.  v.  Laliey,  14 
Gray,  91;  GodeauY.  Blood,  52  Vt.  251;  Huntsman  v.  Nichols,  116  Mass. 
521;  Com.  V.  Pierce,  11  Gray,  447;  State  v.  Witham,  72  Me.  535;  Eeight- 
linger  v.  Egan,  65  111.  235;  Maggi  v.  Cutis,  123  Mass.  535;  Buddey  v. 
Leonard,  4  Denio,  500;  Applebee  v.  Percy,  L.  R.  9  C.  P.  647. 

hSimson  v.  London  General  Omnibus  Go.  L.  R.  8  C.  P.  390.  And  the  gen- 
eral reputation  of  the  animal  is  admissible.    Murray  v.  Young,  12  Bush,  337. 

*Brice  v.  Bauer,  108  N.  Y.  428,  11  Cent.  Rep.  327. 

^Line  v.  Taylor,  3  Post.  &  F.  731. 

^Brooks  V.  Taylor,  65  Mich.  208.  8  West.  Rep.  188;  Lynch  v.  McNally,  7 
Daly,  130,  73  N.  Y.  347;  Chit.  PI.  (16th  Am.  ed.)  vol.  1,  p.  93,  vol.  2,  pp. 
561,  563:  Popplewell  v.  Pierce.  10  Cash.  509;  Brown  v.  Carpenter,  26  Vt. 
638;  iStumps  v.  Kelley,  22  111.  140;  Woolfv.  Chalker,  31  Conn.  121;  M'Cas- 
kill  V.  Elliott,  5  Strobh.  L.  196;  May  v.  Btirdett,  9  Q.  B.  101;  Smith  v.  Pelah, 
2  Strange,  1264;  Jackson  v.  Smithson,  15  Mees.  &  W.  563;  Hudson  v.  Rob- 
erts. 6  Exch.  695-699.  20  L.  J.  N.  S.  Exch.  299.  Contra,  Partlow  v.  Hag- 
garty.  35  Ind.  178;  Williams  v.  Moray,  74  Ind.  25. 

^2  Chit.  PI.  (16th  Am.  ed.)562,  563;  Popplewell  v.  Pierce,  10  Cush.  509. 


Chap.   XXVIII.]     DUTIES  IMPOSED  UPON  OWNERS  OF  DOGS.  621 

accustomed  to  attack  and  injure  mankind,  with  knowledue  tliat  it 
is  so  accustomed,  is  prima  facie  guilty  of  want  of  care  and  liable 
in  an  action  on  the  case  at  the  suit  of  any  person  attacked  and  in- 
jured by  the  animal,  without  any  averment  of  negligence  or  de- 
fault in  securing  and  taking  care  of  it.  It  may  be  that  the  injury 
was  solely  occasioned  by  the  willfulness  of  the  plaintiff  after 
Avarning;  that  may  be  a  ground  of  defense  by  plea  in  confession 
or  avoidance.*  If  it  were  proven  as  a  matter  of  defense  that  the 
plaintiff  willfully  provoked  the  animal  or  was  grossly  negligent  in 
goino:  near  him  with  knowledo;e  of  his  vicious  habit  of  luxikin<2:,  it 
would  of  course  preclude  recovery;  but  as  the  gist  of  the  action, 
according  to  all  the  authorities,  is  the  insecure  keeping  of  the  dan- 
gerous animal  with  knowledge,  and  the  injury  b}'  such  an  animal 
is  prima  facie  proof  of  negligence  and  actionable  without  refer- 
ence to  the  conduct  of  the  plaintiff,  want  of  negligence  on  the  part 
of  the  plaintiff  is  not  necessary  to  be  averred  or  proven.'' 

Unless  actual  proof  is  made  of  ferocious  disposition,  actual 
knowledge  must  be  shown  in  the  owner  of  a  dog  inclined  to  bite, 
and  it  is  not  sufficient  that  he  might  have  known  if  he  had  used 
<3iligeuce  to  inform  himself.^ 

d.  Harhover  of  Dog.—  Unlawful  Possession  of  An- 
imal. 

The  duty  to  protect  others  against  injury  from  vicious  animals 
IS  imposed  upon  the  keeper  irrespective  of  ownership.^  If  a  per- 
ijon  harbors  a  dog  accustomed  to  bite,  or  allows  it  to  frequent  his 
premises,  he  is  liable  under  the  same  conditions  as  if  he  were  the 
owner. ^  Otherwise  where  he  tries  to  keep  him  off  his  premises, 
but  is  not  successful."  A  corjjoration  will  be  liable  if  it  permit 
a  serv^ant  to  keep  such  an  animal  knowingly.'' 

^Popplewell  V.  Pierce,  10  Cush.  509.  and  cases  cited;  Woolfv.  Chalker,  31 
Conn.  130;  Brooks  v.  Taylor,  65  Mich.  208,  8  West.  Rep.'  188. 

•^ Brooke  V.  Taylor.  65  Mich.  208.  8  West.  Rep.  188. 

^Laherty  v.  Hogan,  13  Daly,  583. 

*Hine  v.  Wooding,  87  Conn.  123. 

^Frnmmellv.  Little,  16  Ind.  251;  Marsh  v.  Jones,  21  Vt.  378;  ^fcKoncv.  Wood, 
5  Car.  &  P.  1;  Wilkinson  v.   Parrott,  32  Cal.  102. 

^Smith  V.  Great  Eastern  R.  Co.  L.  R.  2  C.  P.  4,  30  L.  J.  N.  S.  C.  P.  22.  1."") 
W.  R.  31.  15  L.  T.  N.  S.  240. 

''Barrett  V.  Maiden  <&  M.  R.  Co.  3  Allen,  101;  Midler  v.  McKemm.  73  N.  Y.  lO'.. 


^>22  IMPOSED  DUTIES,  PERSONAL.  [Part  Ill- 

One  who  keeps  a  vicious  dog,  with  knowledge  of  its  vicious  dis- 
position, is  liable  to  a  person  injured  bj  it,  although  he  does  not 
own  it.'  Where  plaintiff's  father  wrongfully  took  a  dog  belong- 
ing to  defendant,  and  kept  him  at  his  home  in  such  a  way  that  it. 
can  be  said  that  the  dog  really  lived  there,  and  plaintiff's  son  was 
bitten  by  the  dog,  the  father  was  held  liable  and  defendant  was 
not.^  N'or  would  one  be  liable  for  the  act  of  one  over  whom  he 
had  no  legal  control,  or  for  whose  action  he  was  not  responsible, 
as  that  of  a  boarder  on  his  premises,  or  a  tenant,  although  in  some 
sense  an  employe.' 

Generally  it  has  been-  held  that  while  animals  are  in  the  pos- 
session of  a  bailee,  or  one  unlawfully  holding  them,  the  owner  will 
not  be  liable  for  injury  inflicted  by  them,  but  the  injured  person 
must  look  to  the  hirer,  the  trespasser  or  the  agister.*  There  are 
authorities,  however,  which  assert  a  liability  of  both  owner  and 
agister  of  cattle  at  common  law.^ 

Dogs  upon  a  farm  are  regarded  as  domestic  animals,  and  are 
presumed  not  to  be  vicious,  or  to  have  by  nature  dangerous  in-, 
stincts  or  to  have  acquired  bad  or  harmful  habits,  and  the  owner 
or  harborer  is  not  liable  for  the  consequences  of  their  vicious  acts 
unless  he  had  knowledge  that  would  require  him  to  anticipate 
such  action.  He  is  not  an  absolute  insurer  that  they  will  not  be- 
come vicious  and  acquire  habits  of  pursuing  or  chasing  passers  on 
adjacent  highways.  But  when  they  are  known  to  have  acquired 
such  habits,  they  should  be  properly  restrained.  The  harborer  of 
one  dog,  and  the  owner  of  another,  both  known  to  him  to  be  in 
the  habit  of  barking  at  and  cliasing  persons  or  horses  on  the  road 
adjoining  his  preniises,  but  without  knowledge  that  injury  had 
been  done  thereby,  and  no  proof  being  made  of  his  knowledge 
that  such  act  of  the  dogs  in  so  doing  would  be  likely  to  produce 
injury,  was  held  only  to  the  exercise  of  reasonable  and  ordinary 
care  to  prevent  injury  being  done  by  such  dogs  to  passengers- 
along  the  road,  and  this  ordinary  care  was  defined  to  be  such  as  a 

^Keenan  v.  Gutta  Percha  Mfg.  Co.  46  Hun,  544. 

^Burnham  v.  Strother,  66  Mich.  519. 

^AucJimuty  v.  Ham,  1  Denio,  495;  Cammings  v.  Riley,  53  N.  H.  368. 

*W(des  V.  tord,  8  N.  J.  L.  267;  Lyons  v.  Merrick,   105  Mass.  71;  Cook  v. 

Morea,  33  Ind.  497;  Rossellv.  Cottom,  31  Pa.  525;  Smith  v.  Race,  76111.  490; 

Tewksbury  v.  Bucklin,  7  N.  H.  518;  Barnum  v.  Van  Dusen,  16  Conn.  200. 
*8heriden  v.  Bean,  8  Met.  284. 


Chap.  XXVIIL]    DUTIES  imposed  upon  owners  of  dogs.  C23 

reasonably  prudent  person  would  or  should  exercise  under  like 
circuinstances.  In  Shaw  v.  Craft,  37  Fed.  Rep.  317,  the  jury 
were  also  told  that  if  the  owner  of  the  one,  being  also  the  harborer 
of  the  other,  had  knowledge  that  the  dogs  had  been  in  the  habit 
of  viciously  chasing  or  pursuing  passers-by  in  the  public  road 
adjacent  to  his  premises,  and  injury  had  resulted  therefrom,  or 
the  dogs  had  been  guilty  of  such  acts  with  reference  to  persons 
or  teams  passing  along  such  highway,  as  that  injury  might  have 
thereby  resulted,  then,  with  such  knowledge,  it  was  his  duty  to 
take  such  necessary  measures  as  would  secure  the  public  against 
danger  from  such  future  conduct  and  acts  of  the  dogs,  and,  fail- 
ing to  do  so,  he  would  be  liable  for  injuries  committed  or  pro- 
duced after  such  knowledge.  The  jury  held  tlie  defendant  liable, 
perhaps  taking  what  seems  the  reasonable  view,  that  knowledge 
of  the  habit  involved  knowledge  of  its  dangerous  consequences. 
The  jury  were  also  told  that  the  owner  of  the  dog  would  be  lia- 
ble with  the  harborer  on  whose  premises  his  dog  was  at  the  time,, 
if  he  had  the  same  knowledge,  and  he  would  be  required  to  exer- 
cise the  same  care  and  diligence  as  the  harborer.  This,  of  course, 
was  predicated  of  the  presence  of  the  dog  on  the  premises,  with 
the  consent,  actual  or  constructive,  of  its  owner,  or  of  his  negli- 
gence in  suffering  a  dog  of  such  habits  to  be  uncontrolled. 

But  the  liability  depends  upon  a  legal  title  or  possession,  with 
power  of  control,  or  responsibility  for  the  conduct,  of  the  person 
placed  in  possession.  Where  defendants,  as  executors  of  a  will, 
made  an  agreement  with  a  tenant  by  which  the  latteV  was  to  work 
a  farm  belonging  to  the  estate,  keeping  the  fences  in  repair  and 
caring  for  the  stock,  each  party  to  have  one  half  the  produce  and 
one  half  the  increase  of  stock,  and  the  tenant,  without  the  knowl- 
edge of  the  executors,  traded  off  a  ram  left  with  the  sheep  for 
another  which  escaped  from  the  farm  and  entered  upon  plaintilf's 
farm  adjoining  and  injured  him,  the  executors,  being  sued,  wei-e 
held  not  liable  as  owners.'  But  one  partner  has  been  charged 
under  a  statute  with  liability  as  keeper,  for  injury  done  by  a  dog 
kept  and  owned  by  the  firm.*  And  the  custody  of  one  joint 
owner  will  render  both  owners  liable  for  an  injury  b}'  an  animal.' 

'ifu/\v7i  V.  Hand,  130  N.  Y.  315.     See    Walker  v.  Fim,  24  Pick.  191. 
'^Qrant  v.  Richer,  74  Me.  487. 
^Smith  V.  Jaques,  6  Conn.  o30. 


^2i  IMPOSED    DUTIES,    PERSONAL.  [Part  III. 

In  many  of  the  States  the  liability  of  the  owner  or  harborer  of 
dogs  is  fixed  by  statute,  and  where  this  is  so  the  liability  must  be 
determined  under  them.  Thus,  under  the  Michigan  and  Massa- 
chusetts Statutes,  which  provide  that  it  shall  not  be  necessary  to 
prove  that  the  owner  knew  that  a  dog  was  accustomed  to  do  mis- 
chief in  order  to  make  him  liable,  it  is  not  necessary  to  aver  such 
knowledge  in  a  declaration  for  damages  caused  by  such  dog.' 

The  liability  of  the  owner  or  keeper  of  a  dog,  under  Mass.  Pub. 
Stat.,  chap.  102,  §  93,  arises,  whether  such  injuries  were  caused  by 
biting  or  by  jumping  upon  a  person  and  throwing  him  to  the 
ground;  and  it  is  immaterial  whether  the  dog  was  acting  in  -plaj 
or  with  vicious  intent;''  and  a  recovery  may  be  had  by  a  parent 
for  injury  to  a  child.' 

One  charged  under  a  statute  as  "  possessed  "  of  a  sheep-killing 
dog  cannot  be  convicted  where  he  only  harbored  it."  A  provis- 
ion rendering  a  person  in  possession  of  a  dog  or  who  shall  suffer  a 
dog  to  remain  about  his  house  for  twenty  days,  etc.,  liable  as 
owner  for  his  mischievous  acts,  does  not  make  an  employer  liable 
for  mischief  done  by  the  dog  of  his  hired  laborer,  where  the  dog 
was  in  the  habit  of  following  his  master  daily  to  his  work  on  the 
farm  of  the  employer  and  returning  each  night  and  staying  with 
his  master  at  his  own  house,  which  was  distinct  from  that  of  the 
employer.' 

e.  JVTien  the  Knowledge  of  Servant  will  Charge 

Master. 

A  servant's  knowledge  of  the  vicious  character  of  a  dog  accus- 
tomed to  follow  him  about  on  the  master's  business,  but  not  put 
in  his  charge  by  the  master,  is  not  imputable  to  the  latter.^  Where 
the  knowledge  of  such  propensity  in  the  dog  is  brought  home  to 

^Neioton  v.  Gordon,  72  Mich.  642;  Roswell  v.  Leslie,  133  Mass.  589. 

^Hathaway  v.  Tiiikham,  148  Mass.  85. 

»M'Ca.rihy  v.  Guild,  12  Met.  291. 

*  Williamson  v.  Carroll,  16  N.  J.  L.  217;  Strang  v.  Newlin,  38  How.  Pr.  364; 

Grant  v.  Bicker,  74  Me.  481. 
^Auchmuty  v.  Ham,  1  Denio,  495. 
^Iwigg  V.  Byland,  62  Md.  880;  Stiles  v.  Cardiff  St  am  Nav.  Co.  33  L.  J.  N. 

S.  Q.  B.  310. 


Chap.  XXYIII.]       PROTECTION    OFPROPERTY    IN    DOGS.  625 

a  servant  who  has  been  placed  in  charge  of  the  dog  by  tlie  master 
the  latter  will  be  chargeable  with  notice.' 

In  Baldwin  v.  Casella,  L.  R.  7  Exch.  325,  it  is  said  that  all 
dogs  may  be  mischievons  and  tliercfore  a  man  who  keeps  a  dog  is 
bound  either  to  have  it  under  his  own  observation  or  inspection, 
or,  if  not,  to  appoint  someone  under  whose  observation  and  in- 
spection it  may  be,  and  that  person's  knowledge  is  the  knowledge 
of  the  owner.  In  Brice  v.  Bauer,  lOS  N".  Y.  42S,  11  Cent.  Rep. 
327,  it  is  said  that  the  knowledge  of  one  of  the  servants,  to  whose 
care  the  dog  is  intrusted  and  who  was  himself  bitten  by  the  dog, 
is  the  knowledge  of  the  master,  although  he  was  not  in  fact  in- 
formed of  the  occurrence. 

If  a  general  agent  in  charge  of  the  property  have  notice  of  the 
savage  disposition  of  a  dog  kept  on  the  premises,  the  principal 
will  be  chargeable  with  such  information.' 

Section  ^Z.— Protection  of  Property  in  Dogs. 

No  kind  of  property  has  been  more  subject  to  legislation,  re- 
strictive in  its  character,  and  often  destructive  in  its  mandate, 
than  the  property  in  dogs.  Beasts  thoroughly  tamed  and  serving 
man  for  purposes  of  husbandry  or  transportation,  or  consumed  for 
food,  are  entitled  to  the  same  kind  of  legal  protection  as  other 
classes  of  property.  But  dogs  are  valuable,  for  the  purposes  for 
which  they  are  kept,  somewhat  in  the  relative  proportion  that 
their  destructive  instincts  and  wild  nature  can  be  aroused  and  yet 
restrained  within  the  bounds  of  reasonable  safety  to  the  pul)lic. 
It  is  this  dangerous  and  somewhat  cultivated  tendency  to  retro- 
gression that  requires  legislation  to  empower  the  destruction  of 
such  animals  or  their  restraint,  when  it  would  not  be  justilied  in 
the  case  of  the  thoroughly  domesticated  classes,  whose  existence, 
safety  and  comparative  liberty  are  necessary  to  man.' 

In  1715  a  provision  for  the  killing  of  "unruly  and  ravenous 
dogs"  was  included  in  a  Statute  "for  encouraging  the  killing  of 

^Baldwin  v.  Casella,  L.  R.   7  Exch.  41;  Applebee  v.  Percy,  L.  R.  9  C.  P. 

647,  22  Week.  Hep.  704,  43  L.  J.  N.  S.  C.  P.  365.  30  L.  T.  N.  S.  785. 
•i  Corliss  V.  Smith,  53  Vt.  532. 
^Putnam  v.  Payne,  13  Johns.  312;   Brown  v.  Carpenter,  26  Vt.  638;  Woolfv. 

Chalker,  31  Conn.  121. 

40 


626  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

wolves."'  A  Statute  in  1743  recited  that  much  damage  had  been 
done  by  nnrnl}^  and  mischievous  dogs  in  worrying  and  killing 
sheep  and  lambs  on  the  Island  of  Nantucket,  and  declared  that 
thereafter  it  should  be  lawful  for  any  person  to  kill  any  dog  found 
there.  From  time  to  time  statutes  have  been  passed  in  all  the 
States  restricting  the  liberty  of  keeping  dogs,  and  to  protect  sheep 
and  the  public.'' 

A  dog  listed  for  taxation  cannot  be  lawfully  killed  except  while 
engaged  in  committing  damages  to  property  of  others  than  its- 
owner,  where  there  is  no  evidence  that  the  dog  was  known  to  be 
one  that  would  kill  or  maim  sheep.^  Cause  to  believe  that  a  dog 
was  apt  to  kill  hens  is  not  a  justihcation,  under  the  Massachusetts- 
Statute,  unless  there  was  cause  to  believe  that  the  killing  of  the 
dog  was  necessary." 

A  statute  authorizing  the  killing  of  a  dog  found  worrying  sheep 
does  not  authorize  such  killing  unless  the  dog  was  actually  worry- 
ing the  sheep,  nor  after  he  has  passed  into  another  field;*  and 
it  is  not  sufficient  that  the  party  believed  him  to  be  worrying 
them.*  In  order  to  authorize  the  killing,  it  is  not  necessary  to 
show  that  it  was  killed  in  the  very  act  of  worrying  sheep,  but  it 
is  sufficient  to  show  that  it  was  found  in  the  act  and  immediately 
followed  up  and  killed.' 

Russell  V.  Tomlinson^  2  Conn.  206,  was  an  action  of  trespass, 
averring  that  defendants  entered  upon  plaintiff's  land  with  their 
dogs  and  worried  and  killed  plaintiff's  sheep,  in  which  case  the 
court  said:  "  Owners  are  responsible  for  the  mischief  done  by 
their  dogs,  but  no  man  can  be  liable  for  mischief  done  by  the  dog 
of  another,  unless  he  has  some  agency  in  causing  the  dog  to  do 

iProv.  Stat.  2  Geo.  I.  chap.  3,  Mass.  Prov.  Laws  (ed.  1726)  243. 

^Toicer  v.  Tmver,  18  Pick.  262;  Morey  v.  Brown,  42  N.  H.  373;  Garter  v. 
Dow,  16  Wise,  298;  Smith  v.  C-iusey,  22  Ala.  56^;  Jones  v.  Sherwood,  37 
Conn.  466;  Trompen  v.  Verhage,  54  jMicli.  304;  Fish  v.  Shut,  21  Barb. 
333;  State  v.  Donahue,  49  N.  J.  L.  548,  8  Cent.  Rep.  621;  Kerr  v.  O'Con- 
nor, 63  Pa.  341;  Remele  v.  Donahue,  54  Vt.  555;  Ories  v.  Beck,  24  Ohio 
St.  329;  Mc Adams  v.  Sutton,  24  Ohio  St.  333. 

Winwiddie  v.  State,  103  Ind.  101,  1  West.  Rep.  138. 

*Livermore  v.  BcitcMder,  141  Mass.  179,  1  New  Eng.  Rep.  749.  See  Janson 
V.  Brown,  1  Camp.  41. 

^  Wells  V.  Head,  4  Car.  &  P.  568. 

<^Johnsonv.  McGonnell,  80  Cal.  545;  Brent  v.  Kimball,  60  111.  211. 

"^Johnson  v.  McGonnell,  80  Cal.  545;  Spray  v.  Ammerman,  66  111.  309. 


Chap.   XXYIIL]       PROTECTION    OF    PROPERTY    IN    DOGS.  627 

the  deed.  When  the  dogs  of  several  persons  do  mischief  together, 
each  owner  is  only  liable  for  the  mischief  done  by  his  own  dog» 
and  it  would  be  repugnant  to  the  plainest  principles  of  justice  to 
say  that  the  dogs  of  different  persons,  by  joining  in  doing  mis- 
chief, could  make  the  owners  jointly  liable.  This  would  be  giv- 
ing them  a  power  of  agency  which  no  animal  was  ever  supposed 
to  possess." ' 

Where  animals  belonging  to  several  owners  do  damage  together^ 
each  owner  is  not  separately  liable  for  the  acts  of  all.''  A  joint  ac- 
tion does  not  lie  against  the  separate  owners,'  but  in  many  of 
the  States  that  liability  is  imposed  by  statute.* 

The  Statute  making  the  owner  of  a  dog  which  shall  kill  or 
wound  sheep  liable,  without  notice  that  he  was  mischievous,  has 
no  application  where  the  sheep  were  only  chased  and  worried.  In 
that  case  there  must  be  proof  of  scienter  to  render  the  defendant 
liable.^  Proof  is  admissible,  where  one  dog  is  identified  as  par- 
ticipating in  killing  sheep,  that  another  dog  at  another  time  was 
seen  in  his  company.'     A  dog  may  be  identified  by  his  bark,'' 

It  has  been  held  that  if  it  be  once  shown  that  a  dog  is  so  fero- 
cious that  he  will,  of  his  own  disposition,  bite  mankind  in  the 
street,  and  is  at  large,  he  is  a  nuisance  and  may  be  killed  by  any- 
one.' Dogs  should  not  be  allowed  to  annoy  citizens  in  the  high- 
way, and  much  less  endanger  the  life  or  person  of  a  human  being." 
But  there  must  be  more  than  simple  viciousness,  and  the  person 
justifying  the  killing  must  do  so  upon  his  then  knowledge  of  the 
ferocity  of  the  dog  and  not  upon  after-acquired    information."* 

'See  also  Auchmuty  v.  Ham,  1  Denio,  495. 

^Van  Steenburgh  v.  Tobias,  17  Wend.  562;  Auchmuty  v.  Ham,  1  Denio,  405; 
Partenheimer  V .  Van  Order,  20  Barli.  479. 

Wan  Steenburgh  v.  Tobias,  17  Wend.  562. 

*Rerr  v.  O'Connor,  63  Pa.  341. 

^Auchmuty  v.  Ham,  1  Denio,  495.     See  Millen  v.  Fandrye,  Poph.  161. 

^Carroll  v.  Weiler,  4  Tliomp.&  C.  131. 

''Street  v.  Laumier,  34  Mo.  469;  McCahill  v.  Eipp,  2  E.  D.  Smith,  413. 

^Maxwell  V.  Palmer  ton,  21  Wend.  407;  Putnam  v.  Payne,  13  Johns.  312; 
Brown  v.  Carpenter,  26  Vt.  638;  Uinckley  v.  EmerKon,  4  Cow.  352;  Sher- 
feyv.  Bartley,  4:  Sneec],  58;  Loomtsv.  ferry,  17  Wend.  500;  McKone  v. 
Wood,  5  Car.  &  P.  I;  Blair  v.  Forehand,  100  Mass.  141;  Wadhurxtv.  Dam- 
me, Cro.  Jac.  45;  Barrington  v.  Turner,  3  Lev.  28;  King  v.  Kline,  6  Pa. 
318:  Exodus,  xxi.  28,  29. 

*Dunlap  V.  Snyder,  17  Barb.  561. 

^'^Brent  v.  Kimbell.  60  111.  211. 


628  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

Nor  even  if  a  domestic  animal  be  a  trespasser  can  it  for  that  rea- 
son be  killed,  nor  because  a  do<^  has  before  that  bitten  a  person 
can  he  be  killed  when  not  doing  mischief.'  Nor  to  protect  an 
animal  of  relatively  small  value  may  another  more  valuable  ani- 
mal be  killed.''  It  will  depend  upon  the  question  of  reasonable 
necessity.'  A  stranger  may  kill  the  pursuing  animal  if  reasona- 
bly necessary  and  the  relative  value  justify  it;^  or  if  about  to 
pursue.^  So  in  defending  his  own  muzzled  dog  one  may  kill  an 
attacking  dog;'  and  when  attacked  one  may  kill  a  dog  in  reason- 
able self-defense.'  Shooting  a  dog  as  he  retreats  after  a  harmless 
attack  cannot  be  justified.^  But  a  dog  may  be  killed  when  found 
doing  mischief." 

Section  84. — License  or  Tax  upon  Dogs. 

The  law,  for  protection  of  the  public,  in  the  various  States,  and 
especially  in  cities  and  towns,  imposes  a  license  tax,  and  requires 
the  attachment  of  a  tag  to  a  dog  running  at  large,  and  the  Legis- 
lature may,  under  the  police  power,  authorize  any  person  to  kill 
any  dog  not  licensed  and  collared,  wherever  found."  But  ordi- 
narily a  mayor  of  a  city  has  no  authority  to  direct  the  city  mar- 
shal to  kill  licensed  dogs,  found  running  at  large  unmuzzled,  in 
the  absence  of  an  ordinance  authorizing  such  action." 

Under  the  License  Laws,  requiring  a  dog  tax,  usually  no  previ- 
ous assessment  of  such  tax  is  necessary.  The  law  is  violated 
where  the  tax  is  not  paid.'^ 

^M'G'iskillv.  Elliott,  5  Strobh.  L.  196;  Turnery.  Cory,  5  Ind.  216;  Dean  v. 
Clapton,  7  Taunt.  489;  Wright  v.  Ramscot,  1  Saund.  83;  JoJmson  v.  Pat- 
terson. 14 Conn.  1;  Clark  v.  Keliher,  107  Mass.  406;  Ford  v.  Taggart,4:Tex. 
492;  Dodson  v.  Mock,  4  Dev.  &  B.  L.  146;  Perry  v.  Phipps,  10  Ired.  L.  259. 

^Morse  v.  Nixon,  6  Jones,  L.  293. 

^Lipe  V.  Blackwelder,  25  111.  App.  119;  Williams  v.  Dixon,  Go  N.  C.  416;  An- 
derson V.  Smith,  7  111.  App.  354. 

"^  Leonard  v.  Wilkins,  9  Johns.  233. 

^ Spray  v.  Ammerman,  66  111.  309. 

^Boecher  v.  Lutz,  13  Daly,  28.     See  Dunning  v.  Bird,  24  111.  App.  270. 

''Reynolds  v.  Phillips,  13  111.  App.  557;  Cornelius  v.  Grant,  7  Sc.  Sess.  Cas.  4. 

^Morris  v,  Nugent,  7  Car.  &*P.  568;  Hanway  v.  Boultbee,  4  Car.  &P.  350. 

^Wadkurstv.  Damme,  Cro.  Jac.  45;  Putnam  v.  Payne,  13  Johns.  312;  Car- 
penter v.  Lippitt,  77  Mo.  243;  Protheroe  v.  Matliews,  5  Car.  &  P.  581. 

^'^Blair  v.  Forehand,  100  Mass.  136;  State  v.  Topeka,  36  Kau.  76. 

^^Stebbins  v.  Mayer,  38  Kan.  573. 

"  United  States  v.  Hoskins,  5  Mackey,  478,  8  Cent.  Rep.  705. 


CHAPTER  XXIX. 

ANDIALS    FER^    NATUR.f:    OR    \»iril    CO:^TAGIOUS    DISEASE; 

CRUELTY. 

Sec.  85.  Keepers  of  Animals  Ferce  JVaturm  of  Vicious  Instincts 
in  Places  of  Public  Resort  Liable  for   Injury  to  Others. 

Sec.  86.    Contributory  Negligence  in  Case  of  Injury  from.  Animals. 

Sec.  87.  Duty  of  Owner  of  Animals  Suffering  from  Cotitagious 
Disease. —  Warranty. 

Sec.  88.   Cruelty  to  A7iimals. 

Section  85. — Keepers  of  Animals  Ferm  ^citurce  of 
Vicious  Instincts  in  Places  of  Fuhlic  Presort 
Liahle  for  Injury  to  Others. 

Owners  of  wild  beasts  or  animals  tliat  are  in  tlieir  nature  vicious 
are  liable  under  all,  or  most  all,  circumstances  for  injuries  done  by 
them;  and  in  actions  for  injuries  done  by  such  beasts  it  is  not 
necessary  to  allege  that  the  owner  knew  them  to  be  mischievous, 
for  he  is  presumed  to  have  such  knowledge,  from  which  it  follows 
that  he  is  gnilty  of  negligence  in  permitting  them  to  be  at  large. 
Though  the  owner  have  no  particular  notice  that  the  animal  ever 
did  any  such  mischief  before,  3'et  if  the  animal  be  of  the  class  that 
\^fer(E  natures  and  of  a  vicious  disposition,  like  tigers,  lions,  bears, 
etc.,  the  owner  is  liable  to  an  action  of  damage  if  it  get  loose  and 
do  harm.'  Owners  are  liable  for  the  hurt  done  by  the  animal 
even  without  notice  of  the  propensity,  if  the  animal  is  naturally 
mischievous;  but  if  it  is  of  a  tame  nature,  there  must  be  notice  of 
the  vicious  habit.^ 

Whoever  undertakes  to  keep  an  animal y^^'ce  wa^i^ros  in  places  of 
public  resort  is  liable  for  the  injuries  inflicted  by  it  on  a  party  who 
is  not  guilty  of  negligence.^     Plaintiff  having  been  attacked  and 

•1  Hale,  P.  C.  430;  Van  Lemen  v.  Lyke,  1  N.  Y.  516;  Worth  v.  Gilling,  L.  R. 

2  C.  P.  Z;May  v.  Burdett,  9   Q.  B.  101;    Seribaer  v.  Kelley,  38    Barb.  14; 

Besozzi  V.  Harris,  1  Post.  &  P.  92. 
^Mason  v.  Keeling,  12  Mod.  332;  Rex  v.  nuggins,  2  Ld.  Raym.  1514. 
^Congress  &  E.  Spring  Co.  v.  Edgar,  99  U.  S.  645,  25  L.  ed.  487. 


630  mrosED  duties,  personal.  [Part  III. 

injured  in  a  park  by  a  male  deer  belonging  to  the  proprietors  of 
the  park,  the  owners  were  held  liable,  upon  a  verdict  of  the  jury 
establishing  their  knowledge  of  the  animal's  vicious  propensities.' 
A  person  who  keeps  a  monkey  that  it  is  dangerous  to  allow  at 
large  is  liable  for  injuries  it  may  do  to  persons." 

It  would  seem  that  when  national  zoological  gardens  are  estab- 
lished at  the  capital  and  public  parks  are  occupied  by  collections  of 
wild  animals  and  they  have  a  recognized  value  for  educational  pur- 
poses, the  common -law  rule  must  be  somewhat  relaxed,  and  a  high 
degree  of  care  substituted  for  the  rule  of  absolute  responsibility  in 
case  of  wild  animals  kept  for  useful  purposes.  Indeed,  the  Court  of 
Appeals  of  New  York  practically  recognizes  this  modification  of  the 
old  rule  in  Brice  v.  Bauer,  108  K  Y.  428,  11  Cent.  Kep.  327,  in 
case  of  an  unusually  large  and  savage  dog,  a  cross  between  a  blood 
hound  and  mastiff,  who  desisted  from  his  attempts  to  reach  his 
victim's  throat,  at  his  own  hearth-stone,  only  when  shot  to  death. 

Section  %Q.—Contrihittory   Megli^ence   in    Case  of 
Injury  from  Animals. 

If  the  plaintiff,  by  needlessly  exposing  himself  or  by  annoying 
intentionally  an  animal,  bring  the  injury  upon  himself,  on  well- 
established  principle  he  cannot  recover.^     If  one  wantonly  excite 
an  animal  he  knows  to  be  dangerous  when  thus  aroused,  and  ex- 
pose himself  to  the  attack,  it  is  not  the  negligence  of  the  owner 
in  insecurely  keeping  the  animal  that  causes  the  injury,  but  the 
recklessness  of  the  defendant  in  bringing  the  peril  upon  himself.* 
In  an  action  to  recover  for  injuries  received  from  a  vicious  dog, 
the  defendant  had  c6nceded  that  he  knew  the  vicious  propensities  of 
the  dog,  and  insisted  that  ever  since  he  had  that  knowledge  he  had 
kept  him  securely  chained  in  his  barn  during  the  day  time,  with 
^Congress  &  E.  Spring  Go.  v.  Edgar,  99  U.  S.  645,  25  L.  ed.  487. 
*May  V.  Burdett,  9  Q.  B.  101. 

*WiUiams  v.  Moray,  74  Ind.  25;  Weidev.  Thiel,  9  111.  App.  223;  Keightlinger 
V.  Egnn,  65  111.  235;  Eberhart  v.  Reister,  96  Ind.  478;  Worthen  v.  Loce,  60 
Vt.  285,  6  New  Eng.  Rep.  655;  Carpenter  v.  Latta,  29  Kan.  591;  Quimby 
V.  Woodbury,  63  N.  H.  870;  Ttcigg  v.  Ri/land,  62  Md.  380;  Popplewell  v. 
Pierce,  10  Cush.  509;  Woolfv.  Ghalker,  31  Conn.  130;  5/wA;s  v.  Taylor,  65 
Mich.  208,  8  West.  Rep.  188. 
*Muller  V.  McKesson,  73  N.  Y.  195;  Brock  v.  Gopeland,  1  Esp.  203;  Lynch  v. 
McNally,  73  N.  Y.  347. 


Chap.  XXIX.]  CONTRIBUTORY   NEGLIGENCE.  G31 

the  barn  doors  open,  but  left  him  unchained  at  night,  with  the 
barn  doors  securely  closed;  and  that  he  broke  away  and  injured 
the  plaintiff  by  reason  of  being  unlawfully  provoked  by  the  plain- 
tiff, who  had  no  lawful  occasion  to  go  to  the  barn  where  the  dog 
was  chained.  A  judgment  under  these  facts  was  held  to  be  prop- 
erly found  for  the  defendant.' 

As  the  duty  is  to  keep  the  animal  securely,  so  far  as  the  owner's 
personal  conduct  is  involved,  contributory  negligence  must  be 
clearly  established  to  relieve  from  the  consequence  of  the  owner's 
negligence.  Thus,  an  accidental  and  slight  injury  to  the  dog  will 
not  constitute  such  conti-ibutory  neijlio-enee.'  Nor  will  an  unin- 
tentional  trespass  or  mistake  in  entering  a  house  by  a  frequenter 
thereof  on  a  supposed  invitation.'  And  even  a  trespasser  may 
recover  if  the  owner  be  negligent.*  The  fact  that  the  person  in- 
jured knew  that  a  castrated  bull  or  stag  was  in  a  pasture  and  was 
dangerous  would  be  important  evidence  tending  to  show  negli- 
gence in  going  into  the  pasture,  but  it  cannot  be  said  as  matter  of 
law  that  it  would  conclusively  prove  it.  This  might  depend  upon 
the  size  of  the  pasture,  the  position  of  the  stag  in  it  and  other  cir- 
cumstances which  are  proper  for  the  consideration  of  the  jury. 
The  test  is  whether  in  entering  the  pasture  the  injured  person  ex- 
ercised that  degree  of  care  which  reasonable  and  prudent  men  use 
under  like  circumstances.  And  if  he  was  guilty  of  negligence 
which  contributed  to  his  injury  he  could  not  recover,  except  under 
the  rule  of  comparative  negligence,  recognized  in  Illinois  and 
Georgia,  although  the  negligence  of  the  owner  of  the  stag  was  of 
a  more  gross  and  unpardonable  character.' 

Where  it  is  proved  that  defendant,  sued  for  damages  for  a  dog 
bite,  owned  a  vicious  dog,  and  knowing  of  his  vicious  propensities 
failed  to  confine  him,  and  that  the  dog  attacked  and  bit  plaintiff, 
evidence  that  the  latter  was  at  the  time  moving  at  a  rapid  pace  in 

'  Worthen  v.  Love,  60  Vt.  285,  6  New  Eng.  Rep.    G55.     See    EeightUnger  v. 
Egan,  65  111.  235. 

^Smith  V.  Pelah,  2  Strange,  1264 

^Woolfv.  Chalker,  31  Conn.  121;  Sarch  v.  Blackburn,  4  Car.  &  P.  297;  Kdli/ 
V.  Tilton,  2  Abb.  App.  Dec.  495,  3  Keyes,  263;  Li/nch  v.  McNalli/,  7  Daly 
130,  73  N.  Y.347;  Mcibus  v.  Bodge,  38  Wis.  300;  MtiUer  v.  J/cA'my/t,  73 
N.  Y.  195;  Logrie  v.  Link,  4  E.  D.  Smith,  63. 

*Loomis  V.  Terry,  17  Wend.  496;  Slierfey  v.  Bartley,  4  Sueed.  58. 

^Marble  y.  Boss,  124  Mass.  44. 


632  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

the  highway  and  talking  in  a  somewhat  loud  tone  is  not  suffi- 
cient to  support  a  verdict  for  defendant.' 

It  is  contributive  negligence  in  the  owner  of  crops,  knowing  that 
straying  animals  may  stray  over  defective  cattle-guards  and  destroy 
the  crops,  not  to  use  every  means  that  ordinarily  prudent  persons 
would  use  to  protect  them." 

There  can  be  no  question  that  contributory  negligence  of  the 
plaintiff  is  a  good  defense  to  an  action  for  bringing  cattle  suffering 
from  a  contagious  disease  into  the  State." 

That  a  child  acts  imprudently  as  compared  with  what  would 
have  been  the  conduct  of  a  grown  man,  but  yet  naturally  for  one 
of  its  years,  will  not  be  held  as  contributory  negligence  in  the 
child.  Thus,  an  action  may  be  maintained  for  an  injury  done  by 
a  dog  to  a  boy  thirteen  years  of  age,  although  the  boy  struck  the 
dog  and  thereby  incited  it  to  bite,  and  was  old  enough  to  know 
that  his  act  would  be  likely  to  so  incite  the  dog,  if  the  boy  was  in 
the  exercise  of  such  care  as  could  reasonably  be  expected  from  a 
boy  of  his  age  and  capacity,*  So,  where  a  child  offered  a  dog 
candy  and  was  bitten  there  was  a  recovery.* 

Section  ^l.—Buty  of  Owner  of  Animals  Suffering 
from  Contagious  Disease.— Warranty. 

The  owner  of  diseased  animals  is  not  in  fault  in  keeping  them, 
and  he  is  not  liable  to  an  adjoining  owner  whose  cattle  take  the 
disease,  unless  he  knew  of  the  disease  and  its  danger  and  was  in 
fault  in  his  manner  of  keeping  the  animals.'  If  one  keep  dis- 
eased cattle  upon  his  own  premises  and  give  notice  to  that  effect, 
he  is  not  liable  to  the  owners  of  cattle  that  stray  upon  his  land, 
notwithstanding  he  has  no  fence,  and  catch  a  contagious  disease.^ 
But  one  who,  knowing  that  his  cattle  are  infected  with  a  contag- 
ious  disease,    allows  them  to  run   at   large   on   the  range  used 

^Dockerty  v.  Eaison  (Ind.  Sept.  18,  1890)  25  N.  E.  Rep.  144. 

^Ward  V.  Paducah  &  N.  R.  Co.  4  Fed.  Rep.  863. 

^Patee  v.  Adams,  37  Kan.  133. 

*Plumley  v.  Birge,  124  Mass.  57.     See  Meibus  v.  Dodge,  38  Wis.  300. 

^Lynch  v.  McNaUy,  7  Daly,  130,  73  N.  Y.  347. 

^MiUs  V.  Neto  Fork  &  H.  R.  Co.  2  Robt.  326,  41  N.  Y.  619;  Fisher  v.  Clark^ 

41  Barb.  329. 
'  Walker  v.  Herron,  22  Tex.  55. 


Chap.  XXIX.]       DUTY   OF   OWNER   OF   DISEASED    ANIMALS.  633 

by  the  cattle  of  another,  whereby  the  latter's  cattle  become  in- 
fected and  die,  is  liable  at  common  law  for  the  damaire  thus  caused 
by  his  negligence; '  still  more  clearly,  even  without  proof  of 
scieyiter^  if  the  animals  trespass." 

Where  a  railway  company,  transporting  thrcmgh  a  State  cattle 
diseased  with  the  Texas,  splenic  or  Spanish  fever,  has  its  train 
wrecked  within  the  State,  so -as  to  make  it  necessary  to  unload  the 
cattle,  and  thereupon  it  is  notified  that  the  cattle  are  from  Texas, 
and  will  spread  disease  if  permitted  to  run  at  lai-ge  or  are  driven 
on  the  highway,  it  should  corral  the  cattle  at  or  near  the  wreck, 
or  otherwise  prevent  them  from  running  at  large  or  getting  upon 
the  public  highway;  and  if  it  drives  the  cattle  upon  the  highway 
or  allows  them  to  run  at  large,  after  receiving  such  notice,  it  is 
liable  for  diseases  communicated,  unless  the  owners  of  the  domes- 
tic cattle  are  guilty  of  contributory  negligence.^  No  recovery 
can  be  had,  however,  mider  statutes  enacted  for  the  protection  of 
cattle  against  contagious  diseases,  against  any  person  or  corpora- 
tion acting  in  good  faith,  unless  such  person  or  corporation  had 
knowledge,  or  such  facts  existed  as  to  make  the  person  or  corpo- 
ration chargeable  with  knowledge,  that  the  cattle  driven  or  trans- 
ported into  the  State  were  of  a  kind  liable  to  communicate  the 
disease  to  the  domestic  cattle  of  the  State. ^ 

Under  the  code  practice  in  most  of  the  States,  the  purchasers 
of  cattle  bringing  them  into  a  locality  and  communicating  infec- 
tious Texas  fever  to  another's  cattle  are  properly  joined  as  de- 
fendants, in  an  action  for  damages  therefor,  where  they  assumed 
such  liability  as  part  of  the  consideration  for  the  purchase,  and 
personal  judgment  may  be  had  against  them  and  the  vendor.' 

A  general  warranty  that  an  animal  is  sound  and  free  from  dis- 
ease is  necessarily  a  warranty  against  diseases  of  all  kinds,  includ- 
ing those  which  are  infectious  or  contagious,  and  renders  the 
warrantor  liable  for  damages  caused  by  the  communication  of  such 
a  disease  to  other  stock  with  which  the  animals  sold  are  properly 

^Kemmish  v.  Ball,  80  Fed.  Rep.  759. 

^Barnumv.Vandmen,  16  Conn.  200;  Herrick  v.  Gari/,  65  111.  101;   Cooke  v 

Waring,  2  Hurl.  &  C.  331;  JSfoyes  v.  Colby,  30  N.  H.  143. 
^Missoun  P.  R.  Co.  v.  Finley,  38  Kan.  550. 

*Missouri  P.  R.  Co.  v.  Finley,  38  Kan.  550;  Patee  v.  Adams,  37  Kan.  133. 
'  Woodraum  v.  Clay,  33  Fed.  Rep.  897. 


•{)3-i  IMPOSED    DUTIES,  PERSONAL.  [Plil't  III. 

placed  in  the  ordinary  conrse  of  business,  and  also  for  such  other 
damages  and  expenses  as  are  the  direct  and  natural  result  of  the 
hreach  of  warranty.'  If  animals  sold  are  warranted  sound  and 
are  not  so,  but  have  an  infectious  or  contagious  disease  which  they 
commnnicate  to  others,  where  the  parties  contemplate  their  being 
placed  with  other  stock,  the  loss,  not  only  with  respect  to  the  ani 
mals  purchased,  but  to  others  to  whom  the  warranted  animals 
communicate  the  disease,  may  be  recovered,  as  well  as  the  expense 
of  taking  care  of  and  doctoring  them.*  A  general  warranty  does 
not  apply  to  patent  and  obvious  defects."  To  bring  the  case  with- 
in this  rule,  the  defects  must  be  discernible  by  an  ordinary  ob- 
server examining  the  property  wnth  a  view  to  purchase,  and  not 
requiring  special  skill  to  detect  them.'  It  does  not  usually  extend 
to  defects  apparent  on  simple  inspection,  requiring  no  skill  to  dis- 
cover them,  or  to  defects  known  to  the  buyer;  but  the  warranty 
may  be  so  expressed  as  to  protect  the  buyer  against  consequences 
growing  out  of  a  patent  defect.* 

In  an  action  upon  an  alleged  warranty  of  a  mare,  an  instruction 
that  any  representation  as  to  her  condition  that  seller  intended 
buyer  should  rely  upon  as  a  fact  is  a  warranty  is  sufficiently  spe- 
<3ific.*  A  temporary  and  curable  injury  existing  at  the  sale,  but 
which  does  not  at  the  time  injuriously  affect  the  natural  usefulness 
and  fitness  of  a  horse  for  service,  even  if  it  be  a  fault,  is  not  a 
breach  of  a  warranty  of  soundness.'  The  fact  that  a  mare  sold 
was  with  foal  is  no  breach  of  warranty  that  she  was  "  all  right 
every  way  for  livery  purposes."  *  On  a  warranty  that  a  horse  is 
^11  right,  except  that  he  will  sometimes  shy,  a  recovery  may  be 

^Joy  V.  Bilzer,  77  Iowa,  73,  3  L.  R.  A.  184. 

•^3  Sutherland,  Damages,  435;  Oliphant,  Horses,  210,  311;  Bradley  v.  Rea, 

14  Allen,  20;  Lascelles,  Horse  Warranty  (3d  ed.)  88. 
^Hill   V.  North,  34  Vt.  604;   Williams  v.   Ingram,  21  Tex.  300;  Dillard  v. 

]!doore,  7  Ark.  166;   McGormick  v.  Kelly,  28  Minn.    137;   Vandewalker  v. 

Osmer,  65  Barb.  556;  Hudgim  v.  Perry,  7  Ired.  L.  102;  Bennett  v.  Buchan, 

76  N.  Y.   386;  Jordan  v.   Foster,  11   Ark.   141;  Benjamin,  Sales,   Benn. 

notes,  610-617.     See  Shupe  v.   Collender,  56  Conn.  489,  1  L.  R.  A.  339, 

note. 
^Birdmje  v.  Frost,  34  Barb.  367.     See  Meickley  v.   Parsons,  66  Iowa,  63; 

Vates  V.  Cornelius,  59  Wis.  615. 
^Storrs  V.  Emerson,  72  Iowa,  390. 

^Burnham  v.  Sherwood,  56  Conn.  299,  6  New  Eng.  Rep.  627. 
''Roberts  v.  Jenkins,  21  N.  H.  116. 
*  Whitney  v.  Taylor,  54  Barb.  536;  Benjamin,  Sales,  Benn.  notes,  612. 


Chap.  XXIX.]       DUTY   OF   OWNER   OF    DISEASED    ANIMALS.  635 

had  for  partial  blindness;  the  two  are  not  necessarily  synonymous.' 
A  statement,  in  a  bill  of  sale  of  a  horse,  that  he  was  "  considered 
sound,"  was  held  not  to  import  an  absolute  warranty.'  "Whether 
*'  corns  "  in  a  horse's  foot  is  unsoundness  has  been  held  a  question 
for  the  jury.'  A  mere  cold,  controlled  by  ordinary  remedies,  is 
not  unsoundness.*  Lameness  may  or  may  not  be  unsoundness; 
•if  permanent,  it  is;  if  only  accidental  and  temporary,  it  is  not.* 
"  Cribbing  "  is  an  unsoundness.'  A  horse  may  be  unsound,  at  the 
time  of  sale  if  he  then  has  the  seeds  of  disease  (glanders),  though 
it  be  some  time  before  the  disease  becomes  developed  in  its  most 
offensive  form.  It  is  inchoate  glanders  at  the  time  of  sale.'  The 
•disease  need  not  be  incurable  in  order  to  be  an  unsoundness.'  In 
Kornegay  v.  White,  10  Ala.  255,  it  was  held  that  any  disease 
which  affects  the  value  of  the  animal,  whether  permanent  or  tem- 
porary, is  an  unsoundness.' 

It  is  the  duty  of  a  party  to  protect  himself  from  the  injurious 
•consequences  of  the  wrongful  act  of  another  if  he  can  do  so  by 
ordinary  effort  and  care  and  at  moderate  and  reasonable  expense; 
and  for  such  reasonable  exertion  and  expense  in  that  behalf  he 
may  charge  the  wrong-doer."  After  an  animal  is  injured  the 
owner's  duty  is  to  save  himself  harmless,  if  he  can,  and  to  do  all 
that  prudence  and  good  judgment  dictate  to  relieve  the  defendant 
from  loss."  If  treatment  is  in  good  faith  determined  on,  cost  and 
expense  incurred  in  feeding,  caring  for  and  treating  the  animal 
within  reasonable  limits  would  be  a  ])roper  charge  against  the  de- 
fendant.'''    Expenses  incurred  in  good  faith  in  attempting  a  cure 

^Kingsley  v.  Johnson,  49  Conn.  463. 

"^Wason  V.  Rowe,  16  Vt.  525. 

^Alexander  v.  Button,  58  N.  H.  282. 

*Springstead  v.  Lawson,  23  How.  Pr.  302. 

^ Brown  v.  Bigelow,  10  Allen,  242. 

^WaKhburn  v.  Cuddihy,  8  Gray,  430;  Walker  v.  Iloisingion,  43  Vt.  608. 

"<  Woodbury  v.  Rabbins,  10  Cush.  520. 

» Thompson  v.  Bertrand,  23  Ark.  731. 

'Approved  in  Roberts  v.  Jenkins,  21  N.  H.  119;  Benj.  Sales,  p.  C12. 

"3  Parsons,  Cent.  178;  Field,  Damages,  19;  Harnson  v.  Missouri  Pac.  R. 
Co.  88  -Mo.  625,  5  West.  Rep.  395. 

^'^Gubit  V.  O'Dett,  51  Mich.  350;  Bennis  v.  Iluyck,  48  Mich.  620. 

^'Addison,  Torts,  §  590;  Sedgwick,  Damages,  6lh  ed.  title  Injury  to  Ani- 
mals; Watson  V.  Lisbon  Bridge,  14  Me.  201;  Sutherland,  Damages,  p.  10(3; 
Hughes  v.  Quentin,  8  Car.  &  P.  703;  Dean  v.  Chicago  &  N.  R.  Co.  43  "\Vis. 
308;  Oleson  v.  Brown,  41  Wis.  415;  Sullivan  Co.  v.  Arnett,  116  Ind.  4^8. 


636  IMPOSED    DUTIES,  PERSONAL,  [Part  III» 

may  be  recovered  in  addition  to  tlie  actual  value  of  tlie  animal  at 
tlie  time  the  injury  occurred,  in  a  suit  for  damages  for  an  injury 
to  an  animal  by  which  it  was  rendered  entirely  worthless,  although 
defendant  was  not  consulted  in  relation  to  tlie  matter  of  the  at- 
tempted cure.' 

In  Murphy  v.  McGraw,  74  Mich.  318,  it  appeared  on  the  trial 
that  the  horse  was  worthless  at  the  time  of  purchase  by  reason  of 
a  disease  called  "  eczema."  The  court  charged  the  jury  that  if  the 
plaintiff  was  led  by  defendant  to  keep  on  trying  to  cure  the  horse 
the  expense  thereof  would  be  chargeable  to  the  defendant,  as 
would  also  be  the  case  if  there  were  any  circumstances,  in  the 
judgment  of  the  jury,  which  rendered  it  reasonable  that  he  should 
keep  on  trying  as  long  as  he  did  to  effect  the  cure.  The  plaintiff 
recovered  for  such  expense  and  on  appeal  the  charge  of  the  trial 
court  was  held  correct. 

The  measure  of  damages  in  ordinary  cases  where  property  is 
not  entirely  lost  or  destroyed,  or  practically  and  substantially  so, 
but  is  only  impaired  in  value  or  partially  destroyed,  is  the  differ- 
ence between  the  value  before  the  injury  and  immediately  there- 
after, and  reasonable  expense  incurred,  or  value  of  time  spent,  in 
reasonable  endeavors  to  preserve  or  restore  the  property  injured;*^ 
and  if  injured,  the  difference  between  its  value  before  and  after  the 
injury  and  the  reasonable  expense  of  its  care,  the  temporary  loss- 
of  its  use  and  interest  from  the  date  of  the  action.'  It  is  the 
duty  of  one  injured  in  his  estate  by  the  fault  of  another  to  use  all 
reasonable  means  to  protect  himself  against  injurious  conse- 
quences." 

In  the  case  of  domestic  animals  injured,  the  proper  rule  of  dam- 
ages, as  in  the  case  of  other  perishable  chattels,  should  usually  be 
the  reduced  value  at  the  time."  In  Keyes  v.  Minneapolis  <&  St. 
L.  R.  Co.,  36  Minn.  200,  the  court  stated  that  the  owner  was  en- 
titled to  recover  for  the  diminished  market  value  of  the  animals 

^E'lis  V.  Hilton,  78  Mich.  150,  6  L.  R.  A.  454. 

''Field,  Damages,  621;  Eastman  v.  Sanborn,  3  Allen,  594;  Harrison  v.  Mis- 
souri Pac.  R.  Go.  88  Mo.  625,  5  West.  Rep.  395. 

^Atlanta  &  WeM  Point  R.  Co.  v.  Hudson,  62  Ga.  679;  Jackson  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.  74  Mo.  526;  Toledo,  P.  &  W.  R.  Co.  v.  Johnston,  74  111. 
83;  Meyer  v.  Atlantic  &  P.  R.  Co.  64  Mo.  542;  Whittaker's  Smith,  Neg.  98. 

^Lloyd  V.  Lloyd,  60  Vt.  288,  6  New  Eog.  Rep.  250. 

^Davidson  v.  Michigan  Cent.  R.  Co.  49  Micb.  431. 


Ohap.  XXIX.]  CRUELTY    TO    ANIMALS.  G37 

after  cure,  and,  in  acMition  thereto,  sncli  expense  as  lie  incnn-ci] 
in  reasonable  attempts  to  effect  a  cure,  ])rovided  the  whole  dam- 
ages did  not  exceed  the  oriiriiial  value  of  the  property. 

Section  ^'S.— Cruelty  to  Aniinals. 

An  interesting  and  important  judgment  was  recently  delivered 
by  Lord  Chief  Justice  Coleridge  and  Justice  Hawkins  on  tlie 
illegality  of  dishorning  cattle."  The  case  came  before  them  by 
way  of  appeal  from  a  decision  of  the  Norfolk  magistrates  at  the 
Petty  Sessions.  Mr.  Wiley,  a  Norfolk  farmer,  had  been  sum- 
moned at  the  instance  of  the  Society  for  the  Pi-evention  of  Cru- 
elty to  Animals  for  having  unlawfully  and  cruelly  tortured  thirty- 
two  bullock  by  dishorning  them.  The  facts  were  in  no  dispute. 
Mr.  Wiley  admitted  that  he  had  done  what  was  alleged,  and  gave 
every  facility  to  the  officers  of  the  societj'  for  ascertaining  how  it 
had  to  be  done  and  in  what  state  the  animals  operated  upon  had 
been  left.  That  the  operation,  as  performed  on  Mr.  Wiley's  farm, 
had  been  attended  with  intense  and  prolonged  suffering  to  the 
animals  was  clearly  proved,  and  does  not  seem  to  have  been  de- 
nied. The  defense  set  up  was  that  it  was  necessary  for  a  variety 
of  reasons.  It  added  to  the  value  of  the  animals;  it  enabled  them 
to  be  packed  more  closely  than  they  could  have  been  if  they  had 
retained  their  horns,  and  it  prevented  them  from  inflicting  injury 
one  on  another,  whether  closely  packed  or  not.  The  magistrates 
in  the  event  dismissed  the  case,  but  without  costs,  since  they  con- 
sidered that  the  society  had  done  great  good  by  instituting  it,  and 
at  the  request  of  the  society  they  stated  a  case  for  the  opinion  of 
the  Queen's  Bench  judges,  giving  the  reasons  of  their  decision 
and  asking  wliether  the  distnissal  was  to  stand.  The  question  has 
been  met  with  a  decided  negative  by  the  judges  to  whom  it  has 
been  referred.  The  operation  of  dishorning,  as  it  is  ordinarily 
practiced,  and  as  it  was  practiced  on  Mr.  Wiley's  farm,  has  been 
pronounced  cruel  and  indefensible.     "  Detestably  brutal,"  is  Lord 

'  See  also  Graves  v.  Moses,  13  Minn.  335;  Oillett  v.  Weslern  R.  Corp.  8  Allen, 
560;  Wieeler  v.  Townshend,  42  Vl.  15;  Streett  v.  Lavrnirr,  34  Mo.  469; 
Johnson  v.  Rolyoke,  105  Mass.  80;  Oleson  v.  Brown,  41  Wis.  413;  Shelhy- 
ville  R.  Co.  V.  Lewark,  4  Ind.  471;  Neio  Haven  S*f,tmboat  Co.  v.  Vander- 
but,  16  Conn.  420;  Williamson  v.  Barrett,  51  U.  S.  13  How.  101,  14  L.  ed.  68. 

^Fore  V.  Wiley,  L.  R.  23  Q.  B.  Div.  203,  40  xVlb.  L.  J.  270. 


638  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

Coleridffe's  lanofuasre  in  describino;  it.  Mr.  Justice  Hawkins 
terms  it  a  revolting  operation,  so  torturing  that  he  shudders  to- 
til  ink  that  men  can  be  found  to  perform  it.  As  to  its  absohite 
illegality,  both  judges  are  in  agreement.  That  it  adds  somewhat 
to  the  selling  value  of  the  animals  they  hold  to  be  no  adequate  de- 
fense for  it,  the  rather  since  the  results  aimed  at  can  be  attained 
equally  well  without  it.  The  cruelty  of  the  operation,  amounting 
to  downright  torture,  w^as  proved  by  professional  evidence,  and 
was  substantially  admitted  by  the  defense.  The  main  benefits  of 
it  could  be  obtained  by  a  more  simple  and  painless  process,  ex- 
cept, indeed,  as  far  as  it  enabled  the  seller  to  put  a  fraud  on  an 
incautious  purchaser  as  to  the  animal's  breed  or  age.  As  to  its 
alleged  necessity,  the  court  was  clear  that  a  practice  which  had  for 
many  years  been  unknown  or  wholly  discontinued  in  England  and 
Wales,  and  in  most  counties  of  Scotland,  and  had  only  recently 
been  introduced  from  Ireland,  could  not  be  thought  necessary. 
In  any  case,  there  must  be  some  proportion  between  the  object 
aimed  at  and  the  means.  In  the  case  before  the  court  no  such 
proportion  could  be  found.  The  animals  had  been  "hideously 
tortured''  in  order  to  put  a  few  pounds  more  into  the  owner's 
pockets ;  and  this.  Lord  Coleridge  said,  is  an  instance  of  sucli  ut- 
ter disproportion  between  the  thing  done  and  the  result  as  to 
stamp  it  as  barbarous  and  unlawful.  The  end  sought,  Mr.  Justice 
Hawkins  added,  may  not  be  attained  at  the  sacrifice  at  which  it 
must  be  done.  For  a  man  to  buy  horned  cattle  and  enhance  their 
value  by  mutilating  them  at  the  expense  of  excruciating  torture 
to  the  animals  must  be  set  down  as  needless  cruelty.  Some  former- 
cases,  which  have  been  decided  in  an  opposite  sense,  were  put 
forward  by  the  defense,  but  were  set  aside  by  the  court  with  full 
expression  of  the  respect  for  the  authorities  before  Avhom  they 
had  been  decided.  The  decision  was,  therefore,  that  dishorning 
cattle  was  cruelty  to  animals. 

The  word  "animal,"  in  Mass.  Pub.  Stat.,  chap.  207,  §  53,  relat- 
ing to  cruelty  to  animals,  includes  all  irrational  beings.  The 
Statute  applies  only  to  foxes  when  they  are  in  the  custody  of 
men.*  To  let  loose  a  fox  for  the  purpose  of  being  hunted  by 
dogs  is  cruelty  to  animals,  under  that  Statute.* 

'  ''Com.  V.  Turner,  145  Mass.  396,  5  New  Eng.  Rep.  265. 


Cliap.  XXIX.]  CKUELTY    TO    ANIMALS.  639' 

An  officer  omitting  to  give  an  impounded  beast  reasonable  food 
and  water  becomes  responsible  in  damages.' 

The  turpentining  and  burning  in  a  wanton,  crnel  manner,  a 
goose,  the  property  of  another  person,  constitutes  the  offense  of 
cruelty  to  animals,  under  Ind.  Stat.  1S81,  §  2101." 

One  who  overburdens  a  horse  or  misuses  it  is  liable  in  a  civil 
action  to  the  owner.'  A  shipper  of  cattle  is  entitled  to  recover 
from  the  carrier  for  a  loss  in  value  of  the  stock  by  the  gross  neg- 
ligence and  carelessness  of  the  agents  of  the  latter  in  handling 
and  transporting  the  cattle,  consisting  of  unnecessary  delay  in 
transportation,  needless  confinement  in  the  cars  at  different  sta- 
tions on  the  road  and  bruising  and  bumping  them  caused  by  im- 
proper transportation.*  So  the  carrier  must  feed  and  water  the 
stock.*  In  addition  to  this  he  must  provide  a  place  for  sleeping, 
and,  if  necessary,  a  place  for  exercise.'  In  most  States  statutes 
impose  a  penalty  for  neglect  of  these  duties.' 

^Adam><  v.  Adams,  13  Pick.  384. 

■^State  V.  Bruner,  111  Ind.  98,  9  West.  Rep.  602. 

^ Biggs  &  Clark's  Case,  2  Leon.  104;   Fox  v.  Young,  22  Mo.  App.  386;    Frost 

V.  Plumb,  40  Conn.  Ill;  Buggies  v.  Fai/,  31  Mich.  141;  Austin  v.  Miller, 

74  N.  C.  274. 
*Good  V.  Galveston  H.  &  8.  A.  R.  Co.  (Tex.  April  30,  1889)  11  S.  W.  Rep, 

854. 
"Missouri  Pac.  R.  Go.  v.  Fagan,  72  Tex.  127,  2  L.  R.  A.  75. 
UlUnois  Cent.    R.  Go.  v.  Adaim,  42  111.    474;   loledo,    W.    cfi  W    R.     Go.  v. 

Thompson,  71  111.  434;    Cragin  v.   Ne^o  York  Cent.  R.  Co.  51  N.    Y.  61;. 

Taff  Vale  R.  Go.  v.  Giles,  23  L.  J.  N.  S.  Q.  B.  43;  Great  Northern  R.  Co.  v. 

Swaffield,  L.  R.  3  Exch.  132;  Dunn  v.  Hannibal  &  St.  J.  R.    Co.  68  Mo. 

268;  Harris  v.  Northern  Ind.  R.  Go.  20  N.  Y.  232. 
''Good  V.  Galveston,  H.  &  8.  A.  R.  Go.  (Tex.  April  30,  1889)  4  L.   R.  A.  801, 


CHAFTEE  XXX. 

NEGLIGENCE  IN  USE  OF  FIRE. 

Sec.  89.  Duty  Imposed  upon  a  Person  Using  Fire. 

a.  Statute  of  6  Anne,  Chap.  3,  Sec.  6,  the  Laiv  at  Present. 

b.  Duty  to  Use  Care  Proportioned  to  the  Risk  Involved. 

c.  Duty  to  Follow  Fire  on  Other  Lands  to  Extinguish  It. 

d.  Burden  of  Proof  of  Negligence. 

e.  Rulings  in  New  York  and  Permsylvayiia  Courts  and  Else- 
tvhere. 

f.  Liahility  for  Fire  Indirectly  Extended. 

g.  Intervening  Cause. — Independent  Wrongful  Act  of  a  Respon- 
sible Person. — Natural  Consequences. — Proximate  Cause. 

h.  Fire  Residt  of  One  of  Two  Causes. 

i.  Statutory  Provisions  against  the  Kindling  of  Fires  under 

Certain   Circumstances,  and  Requiring   Fire-Escaiies   to   he 

Placed  upon  Buildings. 

Section  Sd.—Duty  Imposed  upon  a  Person   Using 

Fire. 

a-  Statute  of  6  Anne,  Chap.  3,  Sec.  6,  the  Law  at 

Present. 

The  Statute  6  Anne,  chap.  3,  §  6,  enacted  in  1707,  providing 
that  "Ko  action  shall  be  maintained  against  any  person  in  whose 
house  or  chamber  any  lire  shall  accidentally  begin,"  which  had 
been  construed  as  though  the  Statute  read  "  in  whose  house  or 
chamber  any  fire  shall  negligently  begin,"  thus  exempting  from 
liability,  as  Blackstone  says,  for  the  loss  or  damage  sustained  by 
others,  the  owner  or  occupant  through  whose  negligence  or  through 
the  negligence  or  carelessness  of  whose  servants  the  fire  was  set, 
his  own  loss  being  regarded  as  sufficient  punishment  for  such  neg- 
ligence, has  generally  been  considered  as  constituting  a  j  art  of  the 
common  law  of  all  or  nearlv  all  the  States  of  the  Union.     It  was 


Chap.  XXX,]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIRE.  641 

looked  upon  as  part  of  the  law  of  the  Colonies  before  the  Revolu- 
tion and  during  the  period  of  their  dependence  upon  the  laws  and 
Constitution  of  Great  Britain.' 

The  Statute  of  George  III.,  chap.  78,  §  86,  enacted  in  1774, 
which  enlarged  that  portion  of  the  Statute  of  Anne,  by  declaring 
tliat  "No  action,  suit  or  process  wliatever  shall  be  had,  maintained 
or  prosecuted  against  any  person  in  whose  house,  chamber,  stable, 
barn  or  other  building,  or  on  whose  estate,  any  fire  shall  after  the 
said  24th  da}^  of  June  accidentally  begin,  nor  shall  an}-  i-ecompcnse 
be  made  by  such  person  for  any  damage  suffered  therebjs"  is  held 
to  be  in  force  in  New  York  State  and  by  statute  in  some  other 
States.'  The  Statute  was  passed  on  the  eve  of  the  Revolution  and 
had  received  at  that  time  no  judicial  construction,  but  this  Statute, 
in  Filliter  v.  Phijyjmrd,  11  Q.  B.  347,  was  considered  not  to  in- 
clude cases  of  fire  set  or  produced  by  negligence.'  In  Vaughan 
V.  3fenlove,  3  Bing.  N.  C.  468,  4  Scott,  N.  R.  244,  it  had  been 
held  that  a  right  of  action  existed  against  a  party  for  so  negligently 
•constructing  a  hay-rick  on  the  extremity  of  his  land  that  in  conse- 
quence of  its  spontaneous  combustion  his  neighbor's  house  was 
burned  down;  in  that  case  no  reference  whatever  was  made  to  any 
other  statute. 

The  law  may  be  thus  stated:  While  he  who  by  his  negligence 
or  misadventure  creates  or  suffers  a  fire  upon  his  own  premises, 
which,  burning  his  property,  spreads  immediately  upon  the  adja- 
cent premises  of  another  and  there  destroys  the  latter's  prop- 
erty, is  liable  to  him  in  an  action  for  the  damage  which  he 
has  suffered,'  and  this  doctrine  is  not  one  which,  once  held,  has  in 
latter  days  been  questioned  and  discredited,^  yet  he  will  only  be 
liable  upon  the  ground  of  negligence.     Where  the  defendant  set 

^Lansing  v.  Stone,  37  Barb.  151. 

^Lansing  v.  Stone,  37  Barb.  151.     But  see  Read  v.  Pennsylvania  R.  Co.  44  N. 

J.  L.  280. 
^Pantam  v.  Isham,  1  Salk.  19;  Webb  v.  Rome,  W.  &  0.  R.  Co.  49  N.  Y.  420; 

Spaulding  v.  Chicago  &  N.  W.  R.  Co.  30  Wis.  110.     See    Canterbury  v. 

Atty-Oen.  1  Phipps,  Ch.  806,  315,  320. 
^Beaulieu  v.  Finglam,  Y.  B.  2  Hen.  IV.  fol.  18,  pi.  6,  cited  by  Denio,  J.,  in 

AUhorf  V.  Wolfe,   23  N.  Y.   355.  3G6;  Anonymous,  Cro.  Eliz.  10,  j)!.  5; 

lubervil  v.  Stamp,  1  Salk.  13;  Panlam  v.  Iisham,  Id.  19;  Clark  v.  Foot,  8 

Johns.  421. 
^Filliter  v.  Phippard,  11  Q.  B.  347;  Barnard  v.  Poor,  21  Pick.  378;  Higgins 

V.  Dewey,  107  Mass.  491;  Field  v.   New   York  Cent.  R.  Co.  32  N.  Y.  339; 

Smith  V.  London  &  S.  W.  R.  Co.  L.  R.  5  C.  P.  98. 
41 


642  IMPOSED  DUTIES.  PERSONAL.  [Part  III. 

Gilt  a  fire  in  his  own  inclosed  field  on  a  calm  morning  to  burn  drj 
grass  and  stubble,  and  the  wind  changed  and  carried  the  fire  into 
his  neighbor's  field,  he  was  not  guilty  of  negligence  in  not  antici- 
pating the  change  in  the  direction  of  the  wind.' 

A  man  may  set  fire  on  his  own  land,  and  is  not  liable  to  an  ac- 
tion if  the  fire  escape  by  slowly  burning  in  the  soil  into  his  neigh- 
bor's premises,  though  the  fire  is  started  in  a  dry  time  and  nothing 
is  done  to  prevent  its  spread,"  No  action  can  be  maintained,  un- 
der Mo.  Rev.  Stat.,  §  2129,  against  a  person  who  starts  a  fire  upon 
his  land,  for  a  legitimate  purpose,  which  accidentally  escapes  to- 
adjoining  lands  and  does  injury.*  To  create  a  liability,  under  this 
Statute,  the  setting  on  fire  of  woods,  etc.,  so  as  to  occasion  damage: 
to  any  other  person,  must  be  an  intentional  and  willful  act.* 

b.  Duty  to  Use  Care  Froportioned  to  the  Risk 

Involved. 

But  the  care  must  always  be  in  proportion  to  the  I'isk  involved^ 
and  therefore  one  must  not  kindle  a  fire  when  there  is  apparent 
danger  that  it  will  run  or  be  carried  upon  his  neighbor's  premises.* 
If  one  open  the  damper  in  a  stove,  surrounded  by  oil  in  cans,  in  a 
close  room,  and  leave  the  fire  unguarded,  he  is  answerable  for  the 
resulting  loss.  In  such  a  case  it  was  held  that  the  Statute  6  Anne, 
chap.  3,  §  6,  is  not  in  force  in  New  Jersey.*  So  he  is  liable  if  he 
negligently  admit  gas  into  a  building,  where  it  ignites.' 

It  is  a  tortious  act  to  start  a  fire  on  a  bed  of  turf  or  peat  in  a. 
season  of  great  drought  when  the  ground  is  parched  and  dry,  sa 
that  the  fire  will  run  through  the  bed  of  peat  onto  another's  land 
upon  which  the  bed  extends,  and  so  as  to  cause  serious  loss  to  the 
latter;  and  where  one  was  guilty  of  such  a  positive  wrong,  he  can- 
not escape  liability  for  an  injury  thereby  to  another,  for  the  rea- 
son that  the  fire  burnt  across  the  premises  of  third  persons  before 

^Sweeney  v.  Merrill,  38  Kan.  216. 

^McQibbon  v.  Baxter,  51  Hun,  587. 

^Rimell  V.  Reagan,  34  Mo.  App.  242. 

'^Kalile  V.  Hobein,  30  Mo.  App.  473. 

^Rays  V.  Miller,  6  Hun,  320;  Dewey  v.  Leonard,  14  Minn.  153. 

^Read  v.  Pennsylvania  R.  Co.  44  N.  J.  L.  280. 

''Blenkiron  v.  Great  Central  Gas  Co.  3  L.  T.  N.  S.  317. 


Chap.  XXX.]     DUTY  nirosED  uroN  a  person  using  fire.  t)4;^» 

it  reached  and  did  tlie  iTijury  to  tlie  lands  of  such  other  to  wliich 
the  bed  extended;  an  ordinary  wind  is  not  an  independent  inter- 
vening agency.*  As  late  as  1S5S,  in  the  English  Court  of  Ex- 
chequer, Brain  well,  B.^  used  the  following  language  to  the  jury: 
"  If,  to  serve  his  own  purposes,  a  man  does  a  dangerous  things 
whether  he  takes  precautions  or  not,  and  mischief  ensues,  he  nnist 
bear  the  consequences;  that  running  engines  which  cast  forth 
sparks  is  a  thing  intrinsically  dangerous,  and  that  if  a  railway  en- 
gine is  used  which,  in  spite  of  the  utmost  care  and  skill  on  the 
part  of  the  company  and  their  servants,  is  dangerous,  the  owners 
must  pay  for  any  damage  occasioned  thereby."  But  in  18G0  it 
was  held,  on  an  appeal  of  the  case  to  the  Exchequer  Chamber  (re- 
versing the  Court  of  Exchequer),  that  a  railway  company  author- 
ized by  the  Legislature  to  use  locomotive  engines  is  not  responsible 
for  damage  by  fire  occasioned  by  sparks  emitted  therefrom,  pro- 
vided it  has  taken  every  precaution  in  its  power  and  adopted 
every  means  which  science  can  suggest  to  prevent  injury  from 
fire,  and  is  not  guilty  of  negligence  in  the  management  of  the  en- 
gine; and  that,  although  it  may  be  true  that  if  a  person  keeps  an 
animal  of  known  dangerous  propensities,  or  a  dangerous  instru- 
ment, he  will  be  responsible  to  those  who  are  thereby  injui'cd,  in- 
dependently of  any  negligence  in  the  mode  of  dealing  with  the 
animal,  or  using  the  instrument,  yet,  when  the  Legislature  has 
sanctioned  and  authorized  the  use  of  a  particular  thing,  and  it  is 
used  for  the  purpose  for  which  it  was  authorized,  and  every  pre- 
caution has  been  observed  to  prevent  injury,  the  sanction  of  the 
Legislature  carries  with  it  this  consequence:  that  if  damage  re- 
sults from  the  use  of  such  a  thing,  independently  of  negligence^ 
the  party  using  it  is  not  responsible.  Where  the  defendants  used 
fire  for  the  purpose  of  propelling  locomotive  engines,  they  were 
bound  to  take  proper  precautions  to  prevent  injury  to  persons 
through  whose  lands  they  passed;  but  the  mere  use  of  fire  in  such 
engines  did  not  make  them  liable  for  injury  resulting  from  such 
use,  without  any  negligence  on  their  part.' 

Fii'e  is  a  necessary  agent  in  common   use  in  life,  and  from  its 
employment  under  ordinary  conditions  negligence  or  wrong  is  not 

^Louisville,  N.  A.  &  C.  R.  Co.  v.  Nitsche  (Ind.  Dec.  9,  1890)  9  L.  R.  A.  750. 
*Vaughan  v.  Taff  Vale  R.  Co.  5  nurl.  &  N.  679. 


644  UMPOSED  DUTIES,  PERSONAL.  [Part  III. 

necessarily  inferable;  Imt  it  may  be  so  used  as  to  make  the  person 
using  it  guilty  of  a  tortious  act.  This  doctrine  was  declared  in 
the  early  years  of  the  common  law.'  The  rule  has  continued  in 
unbroken  force  through  all  the  jurisprudence  of  the  English- 
speaking  nations."  A  lawful  act  may  be  done  in  such  a  mode, 
or  under  such  circumstances,  as  to  make  it  wrongful;  and  where 
fire  is  used  in  an  improper  manner  or  under  circumstances  such  as 
inexcusably  imperil  surrounding  or  adjacent  property  the  person 
so  using  it  is  a  wrong-doer.' 

In  Clark  v.  Foot^  8  Johns.  422,  the  rule  is  stated  as  follows: 
"  If  A  sets  fire  to  his  own  fallow  ground  (as  he  may  lawfully  do), 
which  communicates  to  and  fires  the  woodland  of  B,  his  neighbor, 
no  action  lies  against  A,  unless  there  was  some  negligence  or  mis- 
conduct in  him  or  his  servant."  Except  where  this  rule  has  been 
modified  by  statute,  it  is  recognized  in  this  country  generally. 
Where  a  fire  was  communicated  from  a  coal  pit  which  the  defend- 
ant lawfully  set  on  fire  upon  his  own  land,  there  could  be  no  re- 
•covery,  except  by  affirmative  proof  of  negligence." 

Except  in  those  States  where,  from  extensive  prairies  causing 
peculiar  peril,  or  for  other  reasons  of  policy,  the  kindling  of 
fires  in  the  open  is  forbidden  or  only  permitted  during  certain 
months,  under  penalty  of  actual  or  enhanced  damages,^  or  where 
notice  is  required  before  starting  the  fire,  unless  waived  by  ad- 
joining owners,^  every  person  has  the  right  to  kindle  a  fire  on 
his  own  land,  for  any  lawful  purpose;  as,  for  clearing  land  and 

^Smith  V.  Frampton,  2  Salk.  644;  Tabervilv.  Stamp,  1  Salk.  13;  Anonymous, 
Cro.  Eliz.  10. 

^Catron  v.  Mcliols,  81  Mo.  80;  Miller  v.  Martin.  16  Mo.  508:  Clark  v.  Foot, 
8  .Johns.  421;  Barnard  v.  Poor,  21  Pick.  378:  Hanlon  v.  Ingram,  8  Iowa, 
81;  Fahn  v.  Reichart,  8  Wis.  255;  FiUiter  v.  Phippard,  11  Q.  B.  347;  Mc 
Remie  v.  McLeod,  10  Bing.  385;  Cleland  v.  Thornton,  43  Cal.  437;  Collins 
V.  Groseclose,  40  lud.  414. 

*LouisvilU,  N.  A.  &  C.  R.  Co.  v.  Nitsehe  (Ind.  Dec.  9,  1890)  9  L.  R.  A.  750; 
Oagg  v.  Veffer,  41  lad.  228;  Freemantle  v,  London  t&  iV.  W.  R.  Co.  2  Fost. 
&  F.  337;  Aldridge  v.  Great  Western  R.  Co.  3  Man.  &  G.  515;  Vaughan 
V.  Menlom,  3  Bing.  N.  C.  468;  Crogate  v.  Morris,  Brownl.  197;  Higgins 
V.  Dewey,  107  Mass.  494. 

*Tourtellot  v.  Rosebrook,  11  Met.  460. 

^Armstrong  v.  Cooley,  10  III.  509;  Burton  v.  McClellan,  3  111.  434;  Johnson  v. 
Barber,  10  111.  425;  Kahle  v.  Robein,  30  Mo.  App.  472;  Finley  v.  Langs- 
ton,  12  Mo.  120;  Conn  v.  May,  36  Iowa,  241;  Ayer  v.  Starkey,  30  Conn. 
304;  Thoburnv.  Campbell,  80  Iowa,  338. 

^Roberson  v.  Kirby,  7  Jones,  L.  477;  Saussy  v.  South  Florida  R.  Co.  22  F\a,. 
327. 


Chap.  XXX.]      DUTY  IMPOSED  UPON  A  PERSON  USING  FIRE.  645 

purposes  of  husbandry,  at  a  proper  time  and  in  a  suitable  man- 
ner.' And  if  he  uses  reasonable  care  to  prevent  its  spreadin<;an(l 
doing  injury  to  the  property  of  others,  no  just  cause  of  complaint 
can  arise.  Yet,  although  the  time  may  be  suitable  and  the  man- 
ner prudent,  if  he  is  guilty  of  negligence  in  taking  care  of  it,  and 
it  spreads  and  injures  the  property  of  another  in  consequence  of 
such  negligence,  he  is  liable  in  damages  for  the  injury  done."  In 
an  action  for  damages  resulting  from  the  destruction  X)f  property 
by  fire  negligently  set  upon  the  prairies,  the  question  of  negli- 
gence is  alone  for  the  jury  to  determine.'  Proof  that  a  farmer 
on  a  windy  day  set  fire  to  grass  and  stubble  on  his  own  land,  which 
were  very  dry  and  combustible,  and  near  the  land  of  another 
farmer,  is  sufticient  to  cause  the  question  of  negligence  to  be  sub- 
mitted to  the  jury,  in  an  action  by  such  other  farmer  for  dam- 
ages caused  by  the  fire.*  Where  defendant  is  sued  for  damages 
caused  by  fires  started  by  his  servants,  he  may  prove  instructions 
to  his  servants  not  to  start  fires.'  The  gist  of  the  action  is  negli- 
gence, and  if  that  exists,  and  injury  is  done  in  consequence  there- 
of, the  liability  attaches;  and  it  is  immaterial  whether  the  proof 
establishes  gross  negligence,  or  only  a  want  of  ordinary  care,  on 
the  part  of  the  defendant.'  But  a  penalty  imposed  for  "willfully" 
setting  fire  to  any  woods,  etc.,  is  not  incurred,  where  the  fire  re- 
sulted from  an  attempt  to  burn  log-heaps  in  clearing  land  and  was 
not  to  be  anticipated;  ^  nor  when  the  fire  was  started  to  aid  in 
cutting  timber  to  make  charcoal,  and  accidentally  escaped  to  an- 
other's property.* 

^Bachelder  v.  Hcagan,  18  Me.  32;  Dean  v.  McCarty,  2  U.  C.  Q.  B.  448;  OiU- 
son  V.  North  Gray  R.  Co.  33  U.  C.  Q.  B.  129;  Miller  v.  Martin,  16  Mo. 
508;  Frasery.  Tapper,  29  Vt.  409;  Falui  v.  lieichart,  8  Wis.  255;  Fer- 
guson V.  Huhbell,  97  N.  Y.  507. 

^newey  v.  Nourse,  54  Me.  256;  Calkins  v.  Barqer,  44  Barb.  424;  Filliter  v.  Phip- 
pard,  11  Q.  B.  347;  Eanlon  v.  Ingram,  1  Iowa,  108;  Stuart  v.  Ilawley, 
22  Barb.  &\d;  Scott  v.  Hall,  16  IMe.  326;  Deicei/  v.  Leonard,  14  Minn.  153; 
Haysv.  Miller,  6  Hun,  '620;  Erippner  v.  Biebl,  28  Minn.  139;  Garrett  v. 
Freeman,  5  Jones,  L.  78:  Hauck  v.  Hernandez,  41  La.  Ann.  992. 

^Powers  V.  Craig,  22  Neb.  621. 

^Richards  v.  Schleusener,  41  Minn.  49. 

^Moe  V.  Job  (N.  Dak.  May  6,  1890)  45  N.  W.  Rep.  700. 

^Bachelder  v.  Heagan,  18  Me.  32;  Barnard  v.  Poor,  21  Pick.  380;  Tourtellot 
V.  RoHcbrook,  11  Met.  462;  Hewey  v.  Aoui-se,  54  Me.  259;  Higgins  v.  Beio- 
ey,  107  Mass.  494. 

''Kahle  v.  Hobeia,  30  Mo.  App.  472. 

^Russell  V.  Reagan,  34  Mo.  App.  243. 


646  IMPOSED  DUTIES,  peksonal!  [Part  III. 

c.  Duty  to   Follow  Fire   on  Other   Lands   to.  Ex- 
tinguish It. 

If  one  who  had  kindled  a  fire  on  his  own  land  should  see  it 
spreading,  under  tlie  influence  of  a  strono;  and  unexpected  wind, 
without  which  it  would  not  have  spread,  and  should  then  use  every 
possible  effort  to  extinguish  it  before  it  reached  the  line  of  his  own 
land,  but  be  unable  to  do  so,  it  cannot  in  reason  be  claimed  that  he 
could  there  cease  his  efforts,  and  be  heard  to  say  that  he  had  dis- 
charged the  entire  duty  cast  upon  him  by  law  and  the  clearest 
principles  of  I'ight,  and  was  not  liable  for  the  destruction  of  his 
neighbor's  house  or  barn  by  the  fire  of  his  own  kindling,  if  it  ap- 
peared that  by  ordinary  diligence  he  could  have  arrested  the  fire 
soon  after  it  had  crossed  his  own  line,  and  before  it  seriously  in- 
jured his  neighbor.  Having  put  in  motion  the  destructive  element, 
nothing  short  of  the  exercise  of  due  care  to  prevent  injury  from  it 
ought  to  relieve  him  from  responsibility.  He  could  not  be  heard 
to  say  that  the  limit  of  his  obligation  was  fixed  by  and  as  narrow 
as  the  boundaries  of  his  land.  A  failure  under  such  circumstan- 
ces to  follow  the  fire  across  the  line  between  him  and  his  neigh- 
bor, and  to  extinguish  it  when  he  could,  could  not  be  said  to  be 
only  the  neglect  of  a  social  duty.' 

In  some  of  the  States  it  is  held  to  be  the  duty  of  a  railway  to 
extinguish  a  fire,  having  its  origin  in  the  conduct  of  the  compa- 
ny's business,  if  this  can  be  done  by  the  exercise  of  ordinary  care; 
and  the  inquiry  as  to  whether  this  duty  arises  in  all  cases,  or  only 
in  cases  in  which  the  fire  originated  through  the  company's  neg- 
ligence, seems  not  to  have  l)een  deemed  important.'^  In  Kennedy 
V.  Hannibal  (&  St.  J.  R.  Co.,  63  Mo.  99,  it  was  thus  ruled,  but 
when  the  same  case  again  came  before  the  court,  this  ruling  was 
pronounced  obiter  and  it  was  held  the  railroad  company  was  not 
guilty  of  negligence  in  not  extinguishing  a  fire  caused  by  no  want 
of  care  by  the  company.  It  could  not  berequired-that  an  express 
train  should  be  delayed  and  imperil  the  safety  of  the  passengers, 
to  enable  the  railroad  employes  to  put  out  a  fire  on  the  line  of  the 
road,  nor  could  the  company  be  expected  to  keep  men  or  material 

^Missouri  P.  B.  Co.  v.  Platzer,  73  Tex.  117,  3  L.  R.  A.  639. 

^Brighthope  R.  Co.  v.  Bor/ers,  76  Va.  443;  Bolke  v.   Cfiicngo  &  N.  W.  R.  Co. 

26  Wis.  538;  Erd  v.  Chicago  <&  JH.  W.  B.  Co.  41  Wis.  66;  Bass  v.  Chicago, 

B.  &  Q.  B.  Co.  28  111.  9. 


Ohap.  XXX.]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIRE.  C47 

at  every  point  prepared  to  extinguish  iiniisual  fires.'  But  this  is 
because  tlie  raih-oad  company  is  organized  for  a  public  duty,  and 
the  performance  of  this  duty  is  more  important  tl\an  tlie  discharge 
of  any  duty  for  the  preservation  of  property,  when  tlie  two  con- 
flict. But  the  private  individual  kindling  a  fire  on  his  own  prem- 
ises must  be  prepared  to  guard  it  and  prevent  injury  to  his  neigh- 
])ors  if  there  be  reasonable  cause  to  apprehend  danger.'  Xor  can 
it  be  said  that  the  effort  to  stop  the  spread  of  a  fire,  lawfully  kin- 
dled on  one's  own  land,  may  cease  at  the  instant  it  passes  the 
boundary,  because  a  trespass  would  be  committed  by  following  it 
iipon  the  adjoining  land.  The  right  to  destroy  property  on  an- 
other's land  to  prevent  the  spread  of  fire  rests  upon  the  maxim 
"  JVecessitas  ioiducit  privilegium  quoad  jura  privataP  It  is  like 
•entering  another's  land  to  escape  death  from  a  pursuer.  The 
owner  of  land  has  no  such  title  as  can  exclude  or  forbid  such  en- 
try. The  right  is  higher  than  his  title  of  ownership.  This  right 
to  enter  upon  and  destroy  property  to  prevent  the  spread  of  fire 
is  in  the  individual,  as  a  natural  right  existing  anterior  and  inde- 
pendent of  civil  government  or  legal  enactment.*  If  the  duty  to 
stop  the  fire  he  has  kindled  rests  upon  the  individual  upon  his 
own  land,  as  the  duty  is  superior  to  mere  title  in  land,  it  rests 
equally  upon  him  to  continue  his  effort  so  long  as  it  may  promise 
success  wherever  the  fire  extends.  He  has  created  the  peril,  and 
he  must,  so  far  as  effort  in  proportion  to  the  danger  involved  can 
accomplish  it,  remove  the  danger.* 

•See  also  Bajm  v.  Syracme,  B.  &  N.  Y.  R.  Co.  103  N.  Y.  313,  4  Cent.  Rep. 
518;  Drew  v.  Oaylord  Coal  Co.  (Pa.  April  26, 188G)  3  Cent.  Rep.  389. 

^O'Neil  V.  New  York,  0.  &  W.  R.  Co.  115  N.  Y.  79,  5  L.  R.  A.  591;  Clelnnd 
V.  Thornton,  43  Cal.  437;  Jordan  v.  Wi/att,  4  Gratt.  151;  Collins  v.  Grose- 
close,  40  Ind.  414;  Ih'f/qlns  v.  Deiney,  107  Mass.  494;  Iltiysv.  Miller,  6  Hun, 
323,  70  N.  Y.  112;  Vanghn  v.  Menhve,  3  Bin^.  N.  C.  468;  Oarrett  v.  Fi-ee- 
vtan,  5  Jones,  L.  78;  Bdrnard  v.  Pour,  21  Pick.  380;  Tourtellotv.  Rose- 
brook,  11  Met.  462;  Heicey  v.  Nourse,  54  Me.  259;  Oibbons  v.  Wisconsin 
Valley  R.  Co.  66  Wis.  l^i;  Ball  v.  Grand  Trunk  R.  Co.  16  U.  C.  C.  P.  252; 
Tuberml  v.  Stamp,  1  Salk.  13,  12  Mod.  152;  Littleton  v.  Co/e,  5  Mod.  181; 
Eh-d  V.  Chicago  &  N.  W.  R.  Co.  41  Wis.  65. 

^Bacon,  Elem.  Reg.  5;  Broom,  Leg.  Max.  *11;  Noy,  Maxims  (Bering's  ed.) 
p.  30;  Puff.  lib.  II.  chap.  6,  ^  8;  Witherspoon,  Mor.  Phil.  136,  g  16;  2 
Kent,  Com.  §  338;  6'tofte  V.  Acw  York,  2~)  Wend.  173;  Anierican  Print 
Woi-ks  V.  Lawrence,  21  N.  J.  L.  248;  Sucocco  v.  Geary,  3  Cal.  69;  Mouse's 
Case,  12  Coke.  63;  15  Vin.  Abr.  tit.  Xece.ssiiy,  A,  8;  Maleverer  v.  Sj>inke, 
1  Dyer,  360;  Respublica  v.  Sparhawk,  1  U.  8.  1  Dall.  357,  1  L.  ed.  174. 

*  Atchison,  T.  &  8.  F.  R.  Co.  v.  Dennis,  38  Kan.  424;  MjMsouri  Pac.  R.  Co.  v. 
Donaldson.  73  Tex.  124;  Missouri  Pac.  R.  Co.  v.  Pmtzer,  73  Tex.  117,  3 
L.  R.  A.  639. 


6-i8  IMPOSED  DUTIES,  PERSONAL.  [Part  III, 

In  Mayheio  v.  Bums,  103  lud.  328, 1  West.  Eep.  5Y7,  the  right 
of  the  land  owner  to  enter  upon  the  adjoining  land  and  restore  a 
fence,  which  had  fallen  into  an  excavation  on  defendant's  land 
and  created  a  nuisance  on  plaintiff's  lot,  was  upheld.'  One  may 
enter  upon  the  property  of  another  to  abate  a  nuisance,  and  build- 
ings may  be  torn  down  as  nuisances  during  the  spread  of  Asiatic 
cholera.'' 

d.  Burden  of  Proof  of  JVegUgence. 

Generally,  where  the  fire  is  lawfully  set  or  maintained,  the  bur- 
den of  proving  negligence  in  the  starting  or  control  of  the  fire,  to- 
entitle  him  to  a  recovery,  is  upon  the  plaintiff.'  There  are,  how- 
ever, authorities  holding  that  proof  that  the  fire  was  started  by  an 
engine  on  a  railroad  emitting  sparks  or  dropping  coals  casts  the 
burden  of  disproving  negligence  upon  the  corporation.*  And  in 
some  States  this  rule  is  declared  by  statute,  which  creates  also  a 
presumption  of  negligence  against  one  starting  a  fire  under  special 
circumstances  or  at  certain  places.  Thus,  the  rule  before  the 
adoption  of  Iowa  Code,  §  3890,  relating  to  the  liability  of  persons 
setting  prairie  fires,  that  negligence  must  be  shown  to  create  a 
liability,  was  changed  by  the  adoption  of  that  section,  so  as  to  cre- 
ate a  higher  degree  of  liability,  and  to  render  a  person  setting  fire 

'See  also  State  v.  Flannagan,  67  Ind.  140. 

^Meeker  v.  Van  Rensselaer,  15  Wend.  397;  Van  Wormerv.  Albany,  15  Wend, 
262.  See  Jones  v.  Williams,  11  Mees.  &  W.  176;  Hart  v.  Albany,  3  Paige, 
213,  3  N.  Y.  Ch.  L.  ed.  121;  Shepardv.  People,  40  Mich.  487;  Penrud- 
dock's  Case,  5  Coke,  101;  Baviesv.  Williams,  16  Q.  B.  546;  Barling  v. 
Peed,  11  Q.  B.  904;  Occtiin  Co.  v.  Sprague  Mfg.  Co.  34  Conn,  539. 

*Tourtellot  v.  Rosehrook,  11  Met.  460;  Sturgis  v.  Robbins,  03  Me.  289;  Bach- 
elder  V.  Reagan,  18  Me.  32;  Ruffner  v.  Cincinnati,  H.  &  B.  R.  Co.  34  Ohio- 
St.  96;  Collins  v.  JSfew  York  Cent.  &  H.  R.  R.  Co.  5  Hun,  503;  McCaig  v. 
ErieR.  Co.  8  Hun,  599;/eJem  v.  Philadelphia,  W.  &  B.  R.  Co.  3  Houst. 
447;  Loicney\.  New  Brunswick  R.  Co.  78  Me.  479,  3  New  Enff.  Rep. 
268;  Biamond  v.  Northern  Pac.  R.  Co.  6  Mont.  580;  Jennings  v.  Pennsi/l- 
mnia  R.  Co.  93  Pa.  337;  Albert  v.  Northern  Cent.  R.  Go.  98  Pa.  316;  la- 
dianapolis  &  C.  R.  Co.  v.  Paramore,  31  Ind.  143;  McCummons  v.  Chicago- 
&  N.  W.  R.  Co.  33  Iowa,  187;  Macon  &  W.  R.  Co.  v.  McConnell.  27  Ga. 
481;  Ferov.  Buffalo  &  S.  L.  R.  Co.  22  N.  Y.  209;  Pittsburgh,  C.  &  St. 
L.  R.  Co.  V.  Hixmi,  109  Ind.  225,  8  West.  Rep.  888. 

*Lawton  v.  Giles,  90  N.  C.  374;  Gaheston,  H.  &  S.  A.  R.  Go.  v.  Home,  6» 
Tex.  643;  Seska  v.  Chicago,  M.  &8t.  L.  R.  Co.  77  Iowa,  137;  Longabaugh 
V.  Virginia  &  T.  R.  Co.  9  Nev.  271 ;  Anderson  v.  Wasatch  &  J.  V.  R.  Co. 
2  Utah,  518;  Piqgott  v.  Eastern  Counties  R.  Co.  3  C.  B.  229;  Pittsburgh,. 
a.  &8t.  L.  R.  Co.  V.  Campbell,  86  111.  443;  Spatddingv.  Chicago  &  N.  W. 
R.  Co.  30  Wi«  110;  Burlington  &  M.  R.  R.  Co.  v.  Westover,  4  Neb.  268; 
Burke  v.  Louisville  &  N.  R.  Co.  7  Heisk.  451. 


Chap.  XXX.]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIRE.  041) 

and  allowing  it  to  escape  within  the  prohibited  period  absolutely 
liable  for  the  consequences,  irrespective  of  the  degree  of  diligence 
used  to  prevent  its  escape  after  being  set  by  liiin.'  But  this  is  a 
departure  from  the  general  rule  wliieh  we  are  now  considering. 

In  an  action  for  the  recovery  of  damages  resulting  from  a  fire 
kindled  upon  the  property  of  the  defendant,  it  is  necessary  that  the 
plaintiff  should  show  that  the  fire  was  unlawfully  kindled,  or  neg- 
ligently kindled  or  guarded,"  and  there  exists  no  presumption  of 
negligence  as  at  common  law.' 

e.  Rulings  in  j\^ew   Yorh  and  Pennsylvania 
Courts  and  Elsewhei^e. 

In  New  York  and  Pennsylvania  the  liability  for  injury  to  other 
property  caused  by  fire  on  one's  own  property  was,  in  Ryan  v. 
Neio  York  Cent.  R.  Co.,  35  N.  Y.  210,  and  Pennsijlvania  R.  Co. 
V.  Kerr,  62  Pa.  353,  confined  within  narrower  limits  than  else- 
where. It  had  been  held  in  the  former  State  that  where  a  man's 
house  or  other  building  takes  fire,  even  by  his  own  or  his  servant's 
negligence,  and  the  fire  spreads  and  consumes  his  neighbor's  prop- 
erty, he  cannot  be  held  liable  for  the  hitter's  loss,  the  interest  a 
man  has  in  preserving  his  own  property  being  the  only  protection 
to  his  neighbors.*  In  Ryan  v.  Neio  York  Cent.  R.  Co.,  supra, 
where  a  railroad  company,  either  by  the  carelessness  of  its  serv- 
ants or  a  defect  in  its  locomotive,  set  tire  to  one  of  its  wood- 
sheds and  the  fire  destroyed  a  large  quantity  of  wood,  and  wa& 
then  carried  by  sparks  and  heat  to  plaintiff's  house  130  feet  away, 
and  consumed  it  and  other  buildings,  no  relief  was  granted  against 
the  railroad  on  the  ground  that  the  loss  was  the  remote  and  not 
the  proximate  cause.  It  is  said  that  if  an  engineer  on  a  steamboat 
or  locomotive  carelessly  lets  sparks  or  coals  fall  upon  and  consume 
the  house  of  A,  the  employer  will  be  liable;  but  if  the  fire  com- 
municates to  the  house  of  B,  and,  consuming  that,  then  to  the 
house  of  C,  and  so  on  through  the  town,  only  A  can  recover,  as- 

^Thoburn  v.  Campbell,  80  Iowa,  338. 

^Read  v.  Pennsylvania  R.  Go.  44  N.  J.  L.  280. 

'Bachelder  v.  Heagan,  18  Me.  32;  Beaulieu  v.  Finglnm,  Y.  B.  2  Hen.  IV. 

fol.  18,  pi.  6,  cited  in  note  to  AUhorfv.   Wolfe,  22  N.  Y.  360,  367. 
*Lansing  v.  Stone,  37  Barb.  15. 


650  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

the  other  losses  are  remote.  In  Webb  v.  Rome^  W.  &  0.  R.  Co.^ 
49  N.  Y.  420,  the  fire  which  was  communicated  to  defendant's 
track  proceeded  from  the  ties  to  an  accumulation  of  weeds  and 
grass  cut  down  on  the  side  of  the  track.  From  thence  it  was  con- 
ducted to  a  fence,  and  then  upon  the  plaintiff's  land,  burning  the 
trees  and  soil  and  finally  doing  the  damage  complained  of.  The 
railroad  was  held  liable  and  the  ruling  in  Ryan  v.  New  Yorh  Cent. 
R.  Co..,  supra,  was  distinguished  on  the  ground  that  in  that  case, 
and  in  Pennsylva7iia  R.  Co.  v.  Keri\  62  Pa.  353,  which  approved 
and  followed  it,  the  injury  was  not  necessarily  to  be  anticipated 
from  the  fact  of  the  original  fire;  it  was  not  an  ordinary,  natural 
and  usual  i-esult  from  such  a  cause,  but  one  dependent  upon  the 
degree  of  heat,  the  state  of  the  atmosphere,  the  condition  and  ma- 
terials of  the  adjoining  structures  and  the  direction  of  the  wind, 
which  are  said  to  be  circumstances  accidental  and  varying.  A 
consideration  of  the  relations  of  men  to  each  other  in  populous 
villages  and  cities  and  the  disastrous  consequences  to  follow  from 
holding  one  liable  for  his  own  or  his  servant's  negligence,  by  which 
a  fire  kindled  in  his  house  spreads  to  the  property  of  one  or 
more  neighbors,  is  said  to  fortify  the  conclusions  there  reached. 
Where  several  buildings  in  succession  take  fire,  each  from  another, 
and  burn,  the  sparks  which  set  the  first  one  being  carried  past  the 
last  one  burned  by  a  strong  wind  which  changed  its  direction  and 
subsided  before  the  latter  buildings  took  fire,  while  lack  of  fire 
apparatus  or  ladders  prevented  extinguishing  the  fire  at  the  be- 
ginning, the  burning  of  the  last  building  is  not  the  proximate  re- 
sult of  the  setting  fire  to  the  first  one.'  But  damage  caused  by 
the  explosion  of  a  powder  magazine  which  was  located  upon  a  lot 
smaller  than  that  required  by  an  ordinance  is  caused  by  violation 
of  the  ordinance."  In  the  Webb  Case,  supra,  the  negligence  was 
said  to  consist  in  dropping  the  live  coal  on  the  track  in  the  then 
condition  of  the  ties,  the  dry  grass,  the  strong  wind,  the  fence,  etc. 
In  Pollett  V.  Long,  56  ]N".  Y.  200,  where  the  defendant's  dam  had 
given  way  and  carried  away  a  dam  of  the  plaintiff,  and  by  increasing 
the  volume  of  water  tore  out  the  dam  of  a  third  party,  of  whom  plain- 
tiff was  assignee,  the  court  charged  in  substance  that  defendant's  neg- 

^Readx.  Nichols,  118  N.  Y.  a24.  7  L.  R.  A.  130. 

^L'lflin  d  R.  Poioder  Co.  v.  learney,  131  111.  332,  7  L.  R.  A.  262. 


"Chap.  XXX.]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIRE.  651 

liffence  must  liave  been  the  sole  cause  of  the  iniury  or  tliere  could 
be  no  recovery;  that  althono;h  defendant's  dam  was  detective  and 
out  of  repair,  and  in  consequence  gave  way,  if  there  was  sufhcient 
water  in  the  middle  pond  when  its  dam  gave  way  to  materially  in- 
crease the  volume  and  force  of  the  stream,  then  plaintiff  could  not 
recover  for  injuries  to  the  lower  dam,  as  the  damages  were  too 
remote.  This  was  held  error,  and  it  was  said:  "Assuming  that 
this  rule  was  correctly  applied  in  the  case  of  Ryan  v.  New  York 
Central  ...  it  comes  far  short  of  sustaining  the  proposi- 
tion under  consideration."  To  the  same  effect  was  the  ruling  in 
Thohurn  v.  Campbell,  80  Iowa,  338,  where,  in  an  action  against 
defendant  for  damages  suffered  from  a  back  fire  started  by  defend- 
ant, it  was  held  error  to  instruct  the  jury  that  if  the  prairie  tire  was 
so  much  stronger  than  that  kindled  by  defendant  as  to'absorb  it 
-without  material  gain  of  force,  defendant  was  not  liable.  The  true 
question  was,  Which  iire  caused  the  burning  of  the  property  ? 

In  Lowery  v.  Manhattan  B.  Co.,  99  N.  Y.  158,  fire  fell  from 
defendant's  locomotive  upon  a  horse  and  upon  the  hand  of  the 
driver.  The  horse  became  frightened  and  ran  away,  and  the  driver 
attempted  to  turn  him  against  the  curb-stone,  but  the  wagon  passed 
over  the  curb-stone,  threw  the  driver  out,  and  plaintiff,  who  was 
on  the  sidewalk,  was  run  over  and  injured.  It  was  held  that  so 
long  as  the  injury  was  chargeable  to  the  original  wrongful  act  of 
the  defendant  it  was  liable;  that  the  action  of  the  driver,  in  view 
of  the  emergency  of  the  occasion,  whether  prudent  or  otherwise, 
might  "be  considered  as  a  continuation  of  the  original  act,  and  so 
that  act  was  the  proximate  and  not  the  remote  cause  of  the  injury; 
and  the  injury  was  a  natural  and  probable  consequence  of  defend- 
ant's negligence. 

In  Tanner  v.  New  Fork  Cent  c&  IL  R.  R.  Co.,  10$  X.  Y.  623, 
11  Cent.  Rep.  82,  the  action  was  for  loss  of  goods  destroyed  in  a 
freight  car,  by  fire  communicated  by  sparks  from  a  locomotive  to 
a  freight  house,  and  thence  to  the  car,  which  stood  on  a  side  track. 
It  is  said  the  burning  of  the  car  was,  under  the  conditions  existing 
at  the  time,  a  natural  result  of  the  burning  of  the  freight  house, 
and  if  this  was  attributable  to  the  negligence  of  the  defendant,  it 
is  responsible  for  the  loss  of  the  plaintiffs  goods.  In  Tlii^e  v, 
•Cushing,  53  Ilun,  519,  through  the  negligence  of  defendant  in 


652  IMPOSED  DUTIES,  PERSONAL.  [Part  III, 

making  a  new  pier,  and  removing  an  old  pier,  which  served  as  a 
support  to  his  building,  it  fell,  and  the  fall  caused  its  burning 
from  tires  on  the  different  floors,  and  also  the  burning  of  an  ad- 
joining building,  which  was  served  bj  a  common  stairway  and  eleva^ 
tor  in  a  common  hall.  A  distinction  was  taken  between  the  Ryan 
Case,  supra,  in  that  there  was  an  intervening  fact  or  circumstance 
in  that  case,  by  which  the  fire  was  carried  from  one  building  to 
the  other,  and  in  the  case  in  judgment  the  fire  immediately  burned 
its  way  through  the  space  occupied  by  the  elevator,  closets  and 
stairs,  into  the  building  in  which  the  plaintiff  carried  on  his  busi- 
ness, and  it  progressed  so  rapidly  as  to  prevent  the  removal  of  his 
property.  The  fall  of  the  building  was  the  cause  of  the  fire,  and 
naturally  and  inevitably  it  burned  its  way  through  until  the  other 
building  was  reached,  and  plaintiff's  property  destroyed,  and  de- 
fendant was  liable  therefor  as  being  the  proximate  cause  thereof. "■ 
Where  a  small  wooden  shanty  was  constructed  by  the  defendant,, 
near  the  plaintiff's  house,  not  sufficient  room  being  left  for  a  pass- 
age between,  and  waste  and  oil  and  other  inflammable  material 
was  placed  in  the  shanty,  and  a  soft-coal  stove,  with  a  pipe  extend- 
ing through  the  wooden  roof,  was  permitted  to  be  used,  the  burn- 
ing of  plaintiffs  house  through  the  destruction  of  the  shanty  by 
fire  was  held  the  proximate  result,  and,  the  jury  having  found  neg- 
ligence in  the  defendant,  it  was  declared  liable.^ 

It  is  not  probable  that  the  Ryan  Case  or  the  Kerr  Case  will 
ever  serve  to  support  any  future  departure  from  the  line  of  decis- 
ion consistently  followed  by  the  other  courts  in  cases  of  the  spread 
of  fire  by  means  of  wind  from  one  building  to  another. 

The  Supreme  Court  of  Illinois,  in  Fent  v.  Toledo,  P.  db  W.  R. 
Co.,  59  111.  349, 14  Am.  Eep.  13,  where  a  warehouse  near  the  track 
was  set  on  fire  by  an  engine,  and,  the  weather  being  dry  and  the 
wind  blowing  freely  towards  plaintiff's  house,  200  feet  awaj^,  it  was 
destroyed,  declined  to  follow  these  cases,  asserting  that  they  stood 

'See  also  Briggsv.  New  York  Cent.  &H.  R.  R.Co.  72N.Y.  26;  Wasmery.  Dela- 
ware, L.  &  W.  R.  Co.  80  N.  Y.  213,  36  Am.  Rep.  608;  Seeley  v.  New  York 
Cent.  R.  Co.  103  N.Y.  719;  Penmylmnia  R.  Co.  v.  Hope,  80  Pa.  373,  21  Am. 
Rep.  100;  Oil  Creek  &  A.  R.  Co.  v.  Keighron,  74  Pa.  316;  Kellogg  v.  Chi- 
cago &  N.  W.  R.  Co.  26  Wis.  224;  Perley  v.  E<Mern  R.  Co.  98  Mass.  414; 
Biqgim  v.  Dewey,  107  Mass.  494;  Fent  v.  Toledo,  P.  <&  W.  R.  Co.  59  111. 
349;  Field  v.  New  York  Cent.  R.  Co.  32  N.  Y.  339. 

*ran  Fleet  v.  New  York  Cent.  &  H.  R.  R.  Co.  (Sup.  Ct.  Nov.  9,  1889)  27  N.  Y. 
S.  R.  76. 


Oliap.  XXX.]       DUTY  IMPOSED  UPOX  A  PERSON  USING  FIRE.  653 

alone  in  the  narrowness  of  the  rule  thej  prescribed  on  the  sub- 
ject of  proximate  damages.  In  BiUman  v.  Indianapolis^  C. 
(&  L.  R.  Co.,  7G  Ind.  16G,  40  Am.  Rep.  230,  these  cases  were  also 
strongly  disapproved,  but  in  Pennsylvania  Co.  v.  Whitloch,  99  Ind. 
16,  it  is  admitted  that  the  case  under  consideration  in  76  Indiana 
had  no  close  analogy  to  the  cases  disapproved,  and  that  court  was 
not  therefore  irrevocably  committed  to  any  particular  construction 
of  those  cases  in  their  application  to  the  class  of  cases  to  which 
they  strictly  belong;  but  the  court  regards  the  implied  criticism  of 
Judge  Cooley  in  his  work  on  Torts,  p.  76,  as  a  just  one,  and  re- 
marks: "Both  these  cases  have  been  distinguished,  and  had  as- 
signed to  them  a  rather  restricted  and  qualified  value  as  precedents, 
but  neither  one  has  been  held  to  have  been  wrongly  decided  upon 
the  facts  upon  which  it  especially  rested  by  any  of  the  cases  above 
•enumerated  (the  later  cases  in  New  York  and  Pennsylvania),  or  to 
have  been  without  some  support  both  in  reason  and  in  justice.'" 
The  court  then  proceeds  to  deny  the  liability  of  a  railroad  company 
where  the  complaint  alleged  that  its  servants  and  employes  negli- 
gently, but,  nevertheless,  accidentally,  set  fire  to  the  station-house 
adjacent  to  the  plaintiff's  hotel,  and  while  the  station-house  was 
on  fire  and  being  consumed,  the  wind  intervened  and  blew  some 
of  the  sparks  and  flames  over  unto  the  hotel  building,  thus  com- 
municating the  fire  also  to  it,  and  causing  it,  with  the  personal 
property,  to  be  burned  up  and  destroyed.  It  is  said  that  the  com- 
plaint does  not  charge,  either  in  direct  terms,  or  in  equivalent 
words,  that  the  destruction  of  the  hotel  building  was  the  natural 
as' well  as  the  immediate  and  proximate  consequence  of  the  burn- 
ing of  the  station-house.  It  is  said  that  the  decision  in  Louisiana 
Mat.  Ins.  Co.  v.  Tweed,  74  U.  S.  7  Wall.  44,  19  L.  ed.  65,  in 
-svhich  the  Supreme  Court  of  the  United  States  refused  to  recog- 
nize the  wind,  which  had  carried  sparks  and  flames  from  one 
building  to  another  in  that  case,  as  the  intervening  of  a  new  force 
or  power,  was  due  to  the  construction  of  a  peculiarly  worded  policy 
of  insurance  and  not  as  an  incident  of  any  question  of  negligence.' 
In  Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U.  S.  469,  24  L. 
ed.  256,  the  action  was  against  the  railroad  company  for  negli- 

'Citing  Pithburgn,  C.  &  8t.  L.  R.  Co.  v.  Culver,  60  Ind.  469.  See  also  Pitts 
burgh,  C.  d  St.  L.  R.  Co.  v.  Hixon,  79  Ind.  Ill;  Louisoille,  K.  A.  <&  C. 
B.  Co.  V.  2ihlert,  87  Ind.  339. 


654  IMPOSED  DUTIES,  PERSONAL.  [Part  III^ 

gently  setting  fire  to  its  elevator  standing  on  the  bank  of  the  Mis- 
sissippi River,  by  means  of  which  fire  was  communicated  to  the 
plaintiff's  saw-mill  and  lumber,  a  distance  of  538  feet,  and  the  mill 
and  lumber  were  destroyed.  The  court  held  the  railroad  liable, 
declaring  the  true  rule  to  be  that  what  is  the  proximate  cause  of 
an  injury  is  ordinarily  a  question  for  the  jury,  and  not  one  either 
of  science  or  of  legal  knowledge,  and  disapproving  the  Ryan  and 
Kerr  Cases  in  so  far  as  they  might  be  construed  as  enunciating  a, 
different  rule.' 

f.  Liability  for  Fire  Indirectly  Extended. 

The  courts  have  usually  refused  to  limit  the  liability  to  cases 
where  the  fire  has  been  indirectly  carried  to  the  property  burned, 
if  this  consequence  could  be  reasonably  expected  in  the  existing 
conditions  of  the  atmosphere.''  But  wdiere  a  fire  extends  from  one 
building  to  another  successively  through  several,  the  sparks  which 
set  the  first  one  being  carried  past  the  last  one  burned  by  a  fierce 

iSee  Adams  v.  Toung,  44  Ohio  St.  80,  3  West.  Rep.  145;  Toledo,  P.  &  W. 
R.  Co.  V.  Pindar,  53  111.  447;  Fent  v.  Toledo,  P.  &  W.  R.  Co.  59  111.  349; 
Powell  V.  Deveney,  3  Cush.  300;  Vanderburgv.  Truax,  4  Denio,  464;  Hart 
V.  Western  R.  Corp.  13Met.  99;  Perley  v.  Eastern  R.  Co.  98  Mass.  414;  Cleve- 
land V.  Grand  Trunk  R.  Co.  42  Vt.  449;  Smith  v.  London  &  S.  W.  R.  Co.  L. 
R.  5  C.  P.  98,  L.  R.  6  C.  P.  14;  Piggott  v.  Eastern  Counties  R.  Cu.S  C.  B.  229; 
Crandall  v.  Ooodrich  Transp.  Co.  16  Fed.  Rep.  75;  Missouri  Pae.  R.  Co.  v. 
Texas  &  P.  R.  Co.  31  Fed.  Rep.  526;  Illinois  Cent.  R.  Co.  v.  McClelland,  42 
111.  355,  360;  Delaware  R.  Co.  v.  Sahnon,  39  N.  J.  L.  300;  Toledo,  W.  &  W.  R. 
Co.  V.  Mutlmrsbaug,  71  111.  572;  Ktihn  v.  Jeicell.  32  N.  J.  Eq.  647;  Chicago- 
&  A.  R.  Co.  V.  Pennell,  110  111.  435;  Hoyt  v.  Jeffers,  30  Mich.  181;  Small 
V.  Chicago,  R.  I.  &  P.  R.  Co.  55  Iowa,  5»2;  Henry  v.  Southern  Pac.  R.  Co. 
50  Cal.  183;  LouisviUe,  If.  A.  &  C.  R.  Co.  v.  Krinning,  87  Ind.  351;  Poep- 
persv.  Missouri,  K.  &  T.  R.  Co.  67  Mo.  715;  Gulf,  C.  &  8.  F.  R.  Co..v. 
Witte  (Tex.  May  17,  1887)  4  S.  W.  Rep.  490;  Flynn  v.  San,  Francisco  <fr 
8.  J.  R.  Co.  40  Cal.  14;  Philadelphia,  W.  &  B.  R.  Co.  v.  Constable,  39  Md. 
149;  Small  v.  Chicago.  R.  I.  &  P.  R.  Co.  55  Iowa,  582. 

mart  V.  Western  R.  Corp.  13  Met.  99;  Pratt  v.  Atlantic  cfe  St.  L.  R.  Co.  42 
Me.  579;  Lyman  v.  Boston  &  W.  R.  Corp.  4  Cush.  288;  Pierce  v.  Worcester 
&  N.  R.  Co.  105  Mass.  199;  Mihoaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U. 
S.  468,  24  L.  ed.  250;  Burlington  cfc  M.  R.  R.  Co.  v.  Westover,  iNeh.  268;  At- 
chison, T.  &  8.  F.  B.  Co.  V.  Bales,  16  Kan.  252;  Coates  v.  Missouri,  K.  &  T. 
R.  Co.  61  Mo.  38;  Atkinson  v.  Goodrich  Transp.  Co.  60  Wis.  141;  Lehigh 
Valley  R.  Co.  v.  McKeen,  90  Pa.  122;  Indiana,  B.  &  W.  R.  Co.  v.  Overman, 
110  Ind.  538,  8  West.  Rep.  385;  Annapolis  &  E.  R.  Co.  v.  Qantt,  39  Md. 
115;  Fent  v.  Toledo,  P.  &  W.  R.  Co.  59  111.  349;  Delaware,  L.  <&  W.  R. 
Co.  V.  Salmon,  39  N.  J.  L.  300;  Henry  v.  Southern  Pac.  R.  Co.  50  Cal. 
183;  Billmanv.  Indianapolis,  C.  &  L.  R  Co.  76  Ind.  166;  Higgins  v. 
Dewey,  107  Mass.  494;  Small  y.  Chicago,  R.  1.  &  P.  R.  Co.  55  Iowa.  583;. 
Seeley  v.  New  York  Cent.  &  H.  R.  R.  Co.  102  N.  Y.  719,  3  Cent.  Rep.  743; 
Hoyt  V,  Jeffers,  30  Mich.  181;  Missouri  Pac.  R.  Co.  v.  Texas  &  Pac.  R.  Co. 
31  Fed.  Rep.  526. 


Chap.  XXX.]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIUE.  055 

wind,  which  changed  its  direction  and  subsided  before  the  last 
building  cauglit  fire,  and  want  of  fire  appliances  or  ladders  pre- 
vented the  putting  out  of  the  tire  at  its  inception,  the  burning  of 
the  last  building  will  not  be  treated  as  the  proximate  result  of  the 
setting  fire  to  the  first  one.'  The  fact  that  land  of  a  third  party 
intervened  between  the  buildings  or  structures  burned  is  not  alone 
decisive  in  all  cases.  Other  circumstances  may  control,  and  it  may 
appear  from  the  evidence  that  the  result  was  to  have  been  antici- 
pated from  the  moment  the  negligent  act  started  the  fire  at  the 
place  of  its  origin,  and  that  the  destruction  which  followed  was 
the  natural  and  direct  effect  of  the  negligent  act.  If  so  it  is  not 
too  remote.* 

g-  Intervening  Cause.  —  Independent  Wrongful 
Act  of  a  Responsible  Person.—  JVatural  Conse- 
quences.—Proximate  Cause. 

In  an  action  against  a  mill  owner  for  damages  to  property 
caused  by  fire  negligently  or  carelessly  thrown  by  sparks  from  the- 
smoke-stack  of  a  mill  and  carried  to  the  property  by  a  gale  of 
wind  blowing  at  the  time  in  the  direction  of  the  property,  by 
which  fire  the  same  was  damaged,  where  the  conditions  continue 
the  same  as  when  the  negligent  and  careless  act  was  done,  and  no 
new  cause  intervenes,  it  is  not  a  defense  that  the  fire  first  burned 
an  intervening  building  and  was  thence  communicated  by  sparks 
and  cinders  in  the  same  manner  to  the  building  in  which  such  fire 
consumed  the  property,  tliough  the  buildings  were  separated  by  a 
space  of  two  hundred  feet.' 

It  may  be  stated  as  the  true  and  guiding  rule,  that  unless  the 
wrong  and  damage  are  known  to  be  usually  in  consequence  the 
damage  according  to  the  ordinary  course  of  events,  following  from 
the  particular  wrong,  they  will  not  support  an  action.*     But  the 

^Read  v.  Mchoh,  118  N.  Y.  224,  7  L.  R.  A.  130.    See  Louixville,  N.  A.  &  0. 

R.  (Jo.  V.  mtsche  (Ind.  Dec.  9,  1890J  9  L.  R.  A.  750. 
Wandenburfffi  v.  IVunx,  4  Denio,  464;  Pollett  v.   Long,  5G  N.  Y.  200;  Webb- 

V.  Ro7ne,  W.  &  0.  R.  Co.  49  N.  Y.  420;  O'Neill  v.  New  York,  0.  &  W.  R. 

Co.  115  N.  Y.  579,  5  L.  R.  A.  591. 
^Adams  v.  Young.  U  Ohio  St.  80,  3  West.  Rep.  145. 
*Mackv.  Lombard  &  SC.  P.  R.  Co.  (C.  P.  Pa.)  18  Wash.  L.  Rep.  84;  Selleck  v. 

Langdon,  55  Hun,   19;    Wright  v.  Chicago  &  X.  W.   R.    Co.  27  .111.  Aiip. 

200;  Adkins  v.  Atlanta  &  C.  A.  L.  R.  Co.  27  S.  C.  11;  Hudson,  v.  Wabaah 

&  W.  R.  Co.  32  Mo.  App.  667. 


€56  IMPOSED   DUTIES,  PERSONAL.  [Part  III. 

negligence  of  a  responsible  agent  intervening  between  the  defend- 
ant's negligence  and  the  injury  suffered,  i.  'e.  the  damage,  breaks 
the  causal  connection.' 

In  civil  cases  a  defendant  is  not  responsible  for  results,  except 
such  as  are  natural,  proximate  and  direct.  If  such  consequen- 
ces are  caused  bj  the  acts  of  others,  so  operating  on  his  act  as 
to  produce  the  injurious  consequences,  then  he  is  not  liable."  Un- 
usual and  improbable  results  are  not  to  be  anticipated,  but  usual 
or  probable  ones  must  be.° 

The  delivery  of  cotton  at  sheds  by  the  insured  is  not  the  proxi- 
mate cause  of  a  loss  occasioned  by  the  failure  of  a  can-ier  to  trans- 
port it  promptly,  and  its  negligence  in  allowing  the  cotton  to  ac- 
cumulate in  large  quantities."  Where  plaintiff's  building  was 
consumed  by  fire  originating  in  a  wooden  building  adjacent  to  that 
of  the  plaintiff,  the  act  of  negligence  in  building  the  wooden  or 
frame  structure  with  all  its  sides  closed,  in  violation  of  the  city 
ordinance,  was  not  the  proximate  and  immediate  cause  of  the  injury 
complained  of.^  But  under  a  marine  policy  upon  a  canal  boat, 
with  the  privilege  of  carrying  lime  barrels,  insuring  against  perils 
on  inland  waters  and  fires,  where,  upon  discovery  of  a  fire,  the 
cargo  on  deck  was  removed,  and  the  heat  was  so  intense  that  the 
barrels  in  the  hold  could  not  be  unloaded,  and  the  boat  was  scut- 
tled, the  fire  was  the  direct  cause  of  the  loss.' 

Where  a  stringer  of  a  bridge  breaks  M'hile  a  person  is  hauling  a 
steam  boiler  filled  with  hot  water  and  a  steam-engine  over  the  bridge, 
and  his  horses  are  injured  by  the  steam  escaping  from  the  boiler, 
the  breaking  of  the  bi-idge  is  the  proximate  cause  of  the  escape  of 
the  steam  and  water,  and  the  township  is  liable  for  the  damage  if 

^Mahogany  v.  Ward,  16  R.  I.  — ;  Kidder  v.  Dunstable,  7  Gray,  104;  Shepherd 
V.  Chelsea,  4  Allen,  113;  Emporia  v.  Schmidling ,  33  Kan.  485. 

2See  States.  liankin,  3  S.  C.  438;  Whatlej/  v.  Murrell.  1  Strobh.  L.  389; 
Harrison  v.  Berkley,  Id.  548;  Carey  v.  Brooks,  1  Hill,  L.  365;  Hill  v.  Port 
Royal  S  W.  0.  B.  Co.  (S.  C.  July  6,  1886)  5  L.  R.  A.  351. 

^Billman  v.  Indianapolis,  C.  &  L.  R.  Co.  76  Ind.  166;  Dunlap  v.  Wagner, 
85  Ind.  529,  44  Am.  Rep.  42;  Wabash,  Si.  L.  &  P.  B.  Co.  v.  Locke,  112 
Ind.  404,  11  West.  Rep.  877;  Louisville,  N.  A.  &  G.  R.  Go.  v.  Wood,  113 
Ind.  544-556,  12  West.  Rep.  303,  and  cases  cited;  Clore  v.  Mclntire,  120 
Ind.  262-265;  Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  Gooper,  Id.  469-472; 
Terre  Haute  &  L  R.  Go.  v.  Clem,  123  Ind  16,  7  L.  R.  A.  588;  Lane  v. 
Atlantic  Works,  111  Mass.  136;  Hill  v.  Winsor,  118  Mass.  251. 

^Marine  Ins.  Go.  v.  St.  Louis,  L  M.  &  8.  R.  Co.  41  Fed.  Rep.  643. 

^Mathiason  v.  Mayer,  90  Mo.  585,  7  West.  Rep.  739. 

^Singleton  v.  Phoenix  Ins.  Co.  57  Hun,  590. 


Chap.  XXX.]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIRE.  657 

it  has  been  netrligcnt  in  respect  to  the  bridge.'  Where  one  started 
a  fire  to  remove  combustible  material  from  his  ground,  on  a  bed 
of  turf  or  peat,  at  a  season  of  great  drouglit,  the  fact  that  the  fire 
crossed  the  land  of  two  other  persons  before  reacliing  the  plain- 
tiff's ground  will  not  relieve  the  person  starting  the  fire  from  lia- 
bility to  the  latter."  The  act  of  setting  out  a  fire  at  such  a  season 
and  on  an  infiammable  and  continuous  bed  of  peat  was  a  positive 
wrong,  and  not  mere  passive  negligence;  so  that  the  case  falls 
within  the  rule  declared  in  the  famous  Squib  Case,  which  courts 
have  so  often  and  so  strongly  approved.^ 

Extraordinary  winds  may  justly  be  regarded  as  independent  in- 
tervening agencies,  but  not  so  winds  which  are  usual  and  prevail 
without  disturbing  the  normal  condition  of  nature.  One  who  is 
himself  without  fault  has,  in  justice  and  common  fairness,  a  right 
to  recover  from  one  who  has  caused  him  loss  by  a  tortious  act, 
although  an  ordinary  natural  occurrence  entered  into  the  chain  of 
events  which  culminated  in  the  loss.  It  is,  in  truth,  impossible  to 
conceive  a  case  wherein  loss  from  fire  can  happen  wholly  inde- 
pendent of  natural  causes.  Fire  will  not  burn  without  air,  and 
yet  no  one  will  assert  that,  because  this  natural  agency  enters  into 
every  conflagration,  therefore  the  wrong-doer  is  absolved  from 
responsibility.  It  is  very  seldom  that  any  case  arises  in  which 
some  break  between  cause  and  effect  is  not  discernible  upon  rigid 
scrutiny  and  by  captious  refinement,  but  the  law  is  a  practical  sci- 
ence and  repudiates  subtle  refinements  and  speculative  inquiries. 
It  will  not  sacrifice  substantial  rights  to  such  impracticable  proc- 
esses, but  will  reject  them  to  make  way  for  practical  justice.  Re- 
condite discussion  of  efficient  cause,  plurality  of  causes  and  kindred 
topics  is  not  for  the  practical  lawyer  or  judge.^     In    the   ably 

^McKeller  v.  Monitor  I'wp.  78  Mich.  485. 

^Louiismlle,  If.  A.  <fc  C.  E.  Co.  v.  NiiscJie  (Ind.  Dec.  9,  1890)  9  L.  R.  A. 
750. 

^ Scott  V.  Shepherd,  2  W.  Bl.  892;  Billman  v.  IndvmapoUs,  C.  &  L.  R.  Go. 
76  Ind.  166;  Dunlap  v.  Wagner,  85  Ind.  529,  44  Am.  Rep.  42;  Terre  Hnute 
&  I.  R.  Co.  V.  Buck,  96  Ind.  346,  49  Am.  Rep.  186;  L'misviUe,  N.  A.  &  G. 
R.  Co.  V.  Faicey,  104  Ind.  409.  1  West.  Rep.  868;  Indianap'dut.  P.  cfc  a.  R, 
Go.  V.  Pitzer,  109  Ind.  179-188,  7  West.  Rep.  396;  Ohio  &  M.  R.  Co.  v. 
Hecht,  115  Ind.  443,  and  cases  cited;  Louisville,  N.  A.  &  G.  R.  Go.  v. 
Snider,  117  Ind.  435,  3  L.  R.  A.  434;  Denver  &  R.  Q.  R.  Co.  v.  ILirris, 
122  U.  S.  597,  30  L  ed.  1146;  Lake  Shore  &  M.  S.  R.  Co.  v.  Rosenzweii/,  118 
Pa.  519,  4  Cent.  Rep.  712. 

^Louisville,  N.  A.  <&  C.  R.  Co.  v.  MtscJie  (Ind.  Dec.  9,  1890)  9  L.  R.  A.  750. 
42 


65 S  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

reasoned  opinion  pronounced  in  the  case  of  MilwauTcee  c&  St.  P. 
B.  Co.  V.  Kellogg,  94  U.  S.  469,  24  L.  ed.  256,  the  Supreme  Court 
of  the  United  States  unanimously  declared  that  "in  a  succession 
of  dependent  events  an  interval  may  always  be  seen  by  an  acute 
mind  between  a  cause  and  an  effect,  though  it  may  be  so  imper- 
ceptible as  to  be  overlooked  by  a  common  mind.  Thus,  if  a  build- 
ing be  set  on  fire  by  negligence,  and  an  adjoining  building  be  de- 
stroyed without  any  negligence  of  the  occupants,  no  one  would 
doubt  that  the  destruction  of  the  second  was  due  to  the  negligence 
that  caused  the  burning  of  the  first;  yet,  in  truth,  in  a  very  legiti- 
mate sense,  the  immediate  cause  of  the  burning  of  the  second  was 
the  burning  of  the  first.  Such  refinements  are  too  minute  for 
rules  of  social  conduct.  In  the  nature  of  things,  there  is  in  every 
transaction  a  succession  of  events  more  or  less  dependent  upon 
those  preceding;  and  it  is  the  province  of  a  jury  to  look  at  this 
succession  of  events  and  ascertain  whether  they  are  naturally  and 
probably  connected  with  each  other  by  a  continuous  sequence,  or 
are  dissevered  by  new  and  independent  agencies,  and  this  must  be 
determined  in  view  of  the  circumstances  existing  at  the  time." 
Discussing  the  same  general  principle  in  another  case,  that  tribu- 
nal said:  "  In  the  sense  of  an  efficient  cause,  causa  GOMsans,  this  is 
no  doubt  strictly  true;  but  that  is  not  the  sense  in  which  the  law 
uses  the  term  in  this  connection.  The  question  is,  "Was  it  causa 
sine  qua  non,  a  cause  which,  if  it  had  not  existed,  the  injury  would 
not  have  taken  place  ?  And  this  is  a  question  of  fact,  unless  the 
causal  connection  is  evidently  not  proximate.'"  In  the  case  of 
JEtna  Ins.  Co.  v,  Boo7i,  95  U.  S.  117,  24  L.  ed.  395,  the  court 
said  :  "The  question  is  not.  What  cause  was  nearest  in  time  oi 
place  to  the  catastrophe  ?  That  is  not  the  meaning  of  the  maxim 
causa proxima,  non  retnota,  spectaturP  In  the  same  case  the 
court  quoted  with  approval  from  the  case  of  Brady  v.  North- 
western Ins.  Co.,  11  Mich.  425,  the  following  statement  of  the 
law  :  "That  which  is  the  actual  cause  of  the  loss,  whether  operat- 
ing directly  or  by  putting  intervening  agencies,  the  operation  of 
which  could  not  be  reasonably  avoided,  in  motion,  by  which  the 
loss  is  produced,  is  the  cause  to  which  the  loss  must  be  attrib- 
uted." 

^Hayes  v.  Michigan  Cent.  R.  Co.  Ill  U.  S.  228,  28  L.  ed.  410. 


Cliap.  XXX.]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIRE.  C59 

III  almost  ev^ery  branch  of  the  law  may  be  found  cases,  ancient 
and  modern,  asserting  the  general  doctrine  outlined  in  these  de- 
cisions.' 

For  further  examination  of  this  question  of  proximate  cause, 
see  ante^  pp.  649-G54. 

h.  Fire  Result  of  One  of  Tiuo  Causes. 

If  the  tire  result  from  one  of  two  causes,  and  it  cannot  be  de- 
termined from  which,  the  defendant  is  not  liable  unless  he  is  an- 
swerable for  each  cause.  Thus,  where  a  railroad  is  only  liable  if 
fire  escaped  from  a  defective  ash-pan,  and  not  if  it  escaped  from 
a  properly  constructed  smoke-stack,  proof  must  be  made  of  the 
former  causing  the  injury  to  establish  liability.*  If  one  on 
whose  premises  the  lire  spread  may  have  caused  the  loss  to  a  third 
party  by  negligent  failure  to  extinguish  it,  or  if  another  has  ex- 
tended it,  the  original  author  of  the  fire  is  not  liable.' 

Where  by  statute  one  who  starts  a  prairie  fire  is  liable  for  all 
damages  caused  thereby,  irrespective  of  the  degree  of  diligence 
used  to  keep  it  under  control,  one  who  claims  exemption  from  this 
rule,  as  having  started  the  fire  to  escape  an  advancing  fire  which 
threatened  to  destroy  his  property,  must  present  the  issue  by  an- 
swer; and  if  the  two  fires  really  came  together  before  the  plaintiff's 
property  was  reached,  so  that  thereafter  there  was  but  one  fire  and 
that  fire  burned  the  property,  then  the  question  for  the  jury  is, 
Did  the  fire  set  by  defendant  have  such  effect  as  to  cause  the 
burning  of  the  plaintiff's  property?  Or,  in  other  words,  would 
plaintiff's  property  have  been  burned  by  the  other  fire,  if  that  set 
by  defendant  had  not  united  with  it?  It  is  of  little  importance 
which  was  the  larger  fire  when  the  two  met.  The  effect  of  the 
fire  from  that  time  on  the  property  would  not  depend  upon  the  rel- 
ative size  of  the  two  fires  when  they  came  together,  but  on  the  fuel 
that  fed  the  flames  and  the  bi'eeze  that  fanned  them.     The  unit- 

^Omslaer  v.  Philadelphia  Co.  31  Fed.  Rep.  3'54;  Lnncl-7.  Tyngsboro,  11  Cush. 

563;  Louisiana  Mat.  Ins.  Co.  v.  T<need,  74  U.  S.  7  Wall.  44,  19  L.  ed.  65; 

Butler  V.  Wildman,  3  Barn.  &  Aid.  398;  Barton  v.  Home  Ins.  Co.  42  Mo. 

156;  Marcy  v.  Merchants  Mat.  las.    Co.  19  La.  Ann.  388;  Bing  v.  Cohoea, 

77  N.  T.  83;  Ehrgott  v.  New  York,  96  N.  Y.  264. 
*8earUs  v.  Manhattan  E.  R.  Go.  101  N.  Y.  666,  2  Cent.  Rep.  443. 
^Doggett  v.  Richmond  &  D.  R.  Co.  78  N.  C.  305. 


C60  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

ing  of  the  fives,  however,  may  have  increased  the  extent,  and  the 
question  is  one  of  fact  for  the  jury  whether  in  fact  the  defendant's 
fire  caused  the  destruction  of  the  property,  if  the  circumstances 
justified  him  in  starting  tlie  fire.*  But  where  the  defendant's 
negligence  causes  injury,  as,  if  he  wrongfully  started  the  fire,  he 
will  not  be  permitted  to  say  that  the  same  injury  would  have  hap- 
pened from  some  other  cause,  if  he  had  not  been  guilty  of  neg- 
lect.' One  negligent  person  cannot  escape  liability  for  his  negli- 
gence because  the  negligence  of  a  third  person  concurred  in  pro- 
ducing the  injury.' 

i-  Statutory  Provisions  against  the  Kindling  of 
Fires  under  Certain  Cireuriistances,  and  Re- 
quiring Fire-Escapes  to  he  Placed  upon  Build- 
ings. 

The  Legislatures  of  the  various  States  have  attempted  to  limit 
the  loss  of  life  and  property,  caused  by  fires,  by  enacting  provis- 
ions making  it  unlawful  to  kindle  fires  under  certain  circumstances. 
Thus,  in  Florida  it  is  declared  unlawful  to  set  fire  to  woods,  with- 
out giving  notice  to  all  persons  living  within  a  mile.^  Under 
this,  however,  it  cannot  be  shown  that  defendant  failed  to  give 
notice  to  a  person  other  than  plaintiff,  who  lived  within  a  mile, 
this  being  immaterial.^  In  Wisconsin  the  board  of  supervisors  of 
any  town  may  prohibit  the  l)urning  of  logs  or  brush  when  such 
act  M'ould  cause  public  damage  on  account  of  a  drought  pre- 
vailing.® 

In  Tennessee  the  burning  of  woods  is  forbidden,'  and  the  act  is 

^Thoburn  v.  Campbell,  80  Iowa,   338. 

^Nitro-])hosphate  Co.  v.  Liverpool  &  St.  K.  Docks  Co.  L.  R.  9  Ch.  Div.  503, 
where  the  injury  caused  by  the  defendant's  embankment  was  increased 
by  the  act  of  God. 

*Louisville,  N.  A.  &  C.  R.  Co.  v.  Lucas,  119  Ind.  583,  6  L.  R.  A.  193;  Pitts- 
burgh, C.  &  St.  L.  R.  Go.  V.  Spencer,  98  Iiid.  186;  Slater  \.  Mersereau, 
64  N.  Y.  138;  Birrettv.  Third  Ace.  R.  Co.  45  N.  Y.  638;  Garterville  v. 
Cook,  129  Hi.  152,  4  L.  R.  A.  731;  Pastene  v.  Adams,  49  Cal.  87;  DeCamp 
V.  Sioux  City,  74  Iowa,  392. 

4Pla.  Laws,  chap.  3141,  §1. 

^Saussy  v.  South  Fla.  R.  Co.  22  Fla.  327. 

6  Wi.s.  Laws  1887,  chap.  343,  p.  374. 

'Mill.  &  V.  Code  Tenn.  §  2277. 


Chap.  XXX.]     DrTY  imposed  upon  a  person  using  fire.  OGl 

declared  a  misdemeanor.'  In  Delaware  the  protection  of  timber 
and  other  property  is  provided  for,"  and  also  in  Missouri,'  but 
no  punishment  is  imposed  where  the  fire  was  a  misfortune  not 
foreseen  or  intended.*  In  New  Jersey,  township  committees 
are  authorized  to  appoint  persons  to  prevent  tlie  burninf^  of  woods, 
etc.,  and  to  ''ferret  out  and  bring  to  punishment"  persons  causing 
the  same.*  Provision  is  made  in  the  Massachusetts  Statute  for 
the  investigation  of  the  cause,  origin  and  circumstances  of  every 
tire  occurring  in  cities  and  towns  except  Boston,  in  which  property 
has  been  destroyed,  as  to  whether  such  fire  "was  tlie  result  of  care- 
lessness or  design. ° 

Provision  is  made  in  the  different  States  for  the  escape  of  in- 
mates from  buildings  in  case  of  fire.  In  Virginia,  owners  of  fac- 
tories, work-shops,  hotels,  school  buildings  and  hospitals  over  three 
stories  in  height,  theaters  and  other  public  places  of  amusement 
are  recpiired  to  erect  fire-escapes  of  the  most  approved  modern  de- 
sign.^ In  New  Jersey,  all  buildings  in  which  twenty  or  more  per- 
sons live  or  congregate,  or  are  employed,  temporarily  or  otherwise, 
above  the  first  ground  floor  thereof,  are  required  to  have  one  or 
more,  as  the  proper  authority  shall  direct,  external  wrought-iron 
fire-escapes.*  In  Pennsylvania  the  A.cts  of  1SS3  and  1885  to  the 
same  effect  were  amended.'' 

In  New  York,  the  owner  of  a  factory  building,  who  has  received 
rent  for  a  series  of  years,  cannot  escape  responsibility  for  injuries 
suffered  by  an  employe,  where  a  tire  broke  out  in  the  building, 
four  stories  in  height,  which  spread  rapidly,  shutting  off  the  stair- 
way, and,  there  being  no  fire-escapes,  the  employe  leaped  from  the 
third-story  window  to  an  adjoining  roof  and  was  injured,  by  al- 
leging that  he  had  no  personal  knowledge  that  fire-escapes  had  not 
been  erected  as  required  by  Laws  of  1888,  chap.  583,  tit.  14,  §  16, 

'Tenn.  Acts  1887,  chap.  234,  p.  395. 

5  Del.  Laws  1887,  No.  93,  p.  153. 
3  Mo.  Rev.  Stat.  §2129. 

*Kalile  V.  Hobein,  30  Mo.  A  pp.  473. 
f'N.  J.  Laws  1888,  chap.  188,  p.  345. 

6  Mass.  Acts  1889,  chap.  451,  p.  287. 

^Va.  Pub.  Acts  1889-1800,  chap.  199,  p.  151. 
8  N.  J.  Laws  1890,  chap.  G3. 
•Pa.  Laws  1889,  No.  189,  p.  169. 


662  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

and  Laws  of  18S7,  chap.  462,  §  4.  The  initial  duty  rests  upon  the 
owner  of  the  building  to  call  the  attention  of  the  commissioner 
and  seek  his  direction.'  The  absohite  duty  is  imposed  to  provide 
a  fire-escape,  and  this  duty  is  imposed  for  the  benefit  of  the  ten- 
ants of  the  building,  so  that  ihey  can  have  a  mode  of  escape  in 
case  of  a  fire.  For  a  breach  of  this  duty  it  cannot  be  doubted  that 
the  tenants  have  a  remedy.*  It  is  a  general  rule  that  when  one  who 
owes  another  a  duty,  whether  such  duty  is  one  assumed  by  volun- 
tary contract  or  imposed  by  statute,  a  breach  of  such  duty  gives  a 
cause  of  action.  Duty  and  right  are  correlative,  and,  the  duty  be- 
ing imposed,  the  right  to  have  it  performed  results  to  the  person 
interested.  When  a  statute  imposes  a  duty  upon  a  public  officer, 
it  is  well  settled  that  any  person  having  a  special  interest  in  the 
performance  thereof  may  sue  for  a  breach  of  the  duty  causing  him 
damage,  and  the  same  is  true  of  a  duty  imposed  by  statute  upon 
anyone.'  In  Comyn's  Digest,  Action  ^cyon  Statute^  F,  it  is  stated 
as  the  rule  that  "  in  every  case  where  a  statute  enacts  or  prohibits 
a  thing  for  the  benefit  of  a  person,  he  shall  have  a  remedy  upon 
the  same  statute  for  the  thing  enacted  for  his  advantage,  or  for 
the  recompense  of  a  wrong  done  to  him  contrary  to  the  said  law." 
In  an  action  for  the  death  of  the  wife  of  a  tenant  who  occupied 
the  rear  rooms  of  a  house  not  provided  with  a  fire-escape  as  re- 
quired by  law,  and  which  was  destroyed  by  fire  causing  such  death, 
and  there  was  evidence  that  if  there  had  been  a  fire-escape  placed 
at  the  rear  of  the  house,  no  evidence  being  introduced  as  to  their 
usual  position,  the  deceased  could  and  probably  would  bave  es- 
caped, it  was  ruled  that  it  might  be  assumed,  from  the  structure  of 
the  house  and  of  fire-escapes,  that  one  would  probably  have  been 
placed  in  the  rear,  and  the  jury  were  sustained  in  finding  that  the 
deceased  would  have  escaped  if  the  defendant  had  performed  his 
duty  in  providing  the  escape.  It  was  also  decided  that  three  days' 
occupancy,  without  proof  of  notice  of  the  want  of  fire-escapes,  or 
waiver  of  the  duty  to  provide  them,  would  not  bar  the  action. 
The  tenant  owed  no  duty  to  the  landlord  to  examine  to  see  if  there 

mcLauglilin  v.  Armfield  (Sup.  Ct.  Feb.  1891)  34  N.  Y.  S.  R.  886. 

^Willp  V.  Mulledy,  78  N.  Y.  310. 

mover  V.  Barkoff,  44  N.  Y.  113;  Jetter  v.  Neio  York  &  E.   R.   Co.  2  Abb. 

App.  Dec.  458;  Heeneyv.  iSprague,  11  R.  I.  456;  Couch  v.   Steel,  3  El.  & 

Bl.  402;  Willi/  v.  Mulledi/,  78  N.  Y.  310. 


Chap.  XXX.]       DUTY  IMPOSED  UPON  A  PERSON  USING  FIUE.  663 

was  such  escape  provided,  but  might  assume  that  the  statutory 
duty  had  been  performed.  Nor  would  knowledge  of  the  failure 
of  the  landlord  have  defeated  the  action,  as  the  tenant  might  re- 
quire the  landlord  to  perform  the  duty,  or  take  a  reasonable  time 
to  secure  other  apartments.' 

Any  building  more  than  forty  feet  high  above  the  first  story, 
and  built  to  contain  six  families  or  more,  which  has  no  practical 
fire-escape  in  violation  of  the  provisions  of  N.  Y.  Laws  1802, 
chap.  356,  §  27,  is  a  nuisance.''  But  a  statute  requiring  the  owner 
or  agent  for  the  owner  of  any  factory,  work-shop,  tenement  house, 
inn  or  public  house  more  than  two  stories  high,  to  provide  a  con- 
venient exit  from  each  story,  does  not  impose  such  duty  on  the 
owner,  when  he  is  not  in  possession  or  control  thereof,  and  his 
tenant  in  possession  and  control  uses  the  building  as  a  factory  or 
workshop.  ° 

'  Willy  V.  Mulledy,  78  N.  Y.  310. 

^Fire  Department  v.  Williamson,  16  Abb.  Pr.  19;) 

^Lee  V.  Smith,  42  Ohio  St.  458. 


CHAPTER  XXXL 

NEGLIGENCE  CONTRIBUTING  TO  INJURY   SUFFERED  FROM 

FIRE. 

Sec.  90.   Contributory  Negligence  of  Party  Injured  by  lire. 

a.  Not  Bound  to  Anticipate  Negligence. 

b.  Mitst  not  Create  Peril  nor  Neglect  Effort  to  Escape  Loss. 

c.  Eight  to  Build  on  One's  Oion  Land. 

d.  Not  Chargeable  on  Accoicnt  of  Changed  Conditions. 

e.  No  Recovery  where  Plaintiff  Consents  to  Increase  of  Danger. 

f.  Special  Acts  and  Conditions  Present  Questions  for  the  Jury. 

Section  90. — Contributory  J^e^ligence  of  Party  In- 
jured hy  Fire. 

The  lawful  use  of  one's  land  cannot  be  held  to  be  negligence,  or 
the  proximate  cause  of  injury  by  another.  "The  aggressor  can 
never  say  that  it  was  the  duty  of  the  assailed  to  ward  off  the  blow 
unlawfully  aimed  at  him.'"  As  no  compensation  has  been  allowed 
land  holders  for  the  loss  or  hazard  from  negligently  kindled  or 
controlled  fires,''  it  would  invade  constitutionally  protected  rights 
to  hold  them  outlawed  for  a  legitimate  use  of  their  own  property.* 

^Wilder  v.  Maine  Cent.  R.  Co.  65  Me.  332;  Benson y.  Suarez,  28 How.  Pr.  512; 
Cressey  v.  Northern  R.  Co.  59  N.  H.  564;  Flynn  v.  San  Francisco  &  S.  J. 
R.  Co.  40  Cal.  14;  Salmon  v.  JDelaioare,  L.  &  W.  R.  Co.  38  N.  J.  L.  5; 
DeUmare,  L.  &  W.  R.  Co.  v.  Salmon,  39  N.  J.  L.  311;  Snyder  v.  Pitts- 
burgh, C.  <&  St.  L.  R.  Co.  11  W.  Va.  17;  St.  Joseph  &  D.  G.  R.  Co.  v. 
Chnse,  11  Kan.  47;  Fitch  v.  Pacific  R.  Co.  45  Mo.  323;  Jefferis  v.  Phila- 
delphia, W.  &  B.  R.  Co.  3  Houst.  448;  Burke  v.  Louisville  &  N.  R.  Co. 
7  Heisk.  452;  Hart  v.  Western  R.  Corp.  13  Met.  99;  Ingersollv.  Stockbridge 
&  P.  R.  Co.  8  Allen,  43S;  Martin  v.  Western  U.  R.  Co.  23  Wis.  437;  Pig- 
gott  V.  Eastern  Counties  B.  Co.  3  C.  B.  228;  Smith  v.  London  &  S.  W.  R. 
Co.  L.  R.  5  C.  P.  98;  Hewey  v.  Nourse,  54  Me.  256;  Field  v.  New  York 
Cent.  R.  Cb.  32N.  Y.  339;  Bacheldery.  Heagan,  18  Me.  32;  Bariiard  v. 
Pwr,  21  Pick.  378;  Perfey  V.  Eastern  B.  Co.  98  Mass.  414;  Hooksettv. 
Concord  R.  Co.  38  N.  H.  242;  McCready  v.  South  Carolina  R.  Co.  2  Strobh. 
L.  356;  Cleveland  v.  Grand  Trunk  R.  Co.  42  Vt.  449;  Alpern  v.  Churchill, 
53  Mich.  614. 
^Sunbury  &  E.  R.  Co.  v.  Hummell,  27  Pa.  99;  Lehigh  Valley  B.  Co.  v.  Laza- 
rus, 28  Pa.  203;  Patten  v.  Northern  Cent.  B.  Co.  33  Pa.  426. 

^Re  Jacobs,  98  N.  Y.  98;  Baltimore  <&  P.  R.  Co.  v.  Fifth  Baptist  Church,  108 
U.  S.  317,  27  L.  ed.  739;  Butchers  Union  S.  H.  &  L.  S.  L.  Co.  v.  Crescent 
City  L.  S.  L.  <&  8.  H.  Co.  Ill  U.  S.  755,  28  L.  ed.  590. 


Chap.  XXXI.]    CONTRIBUTORT  NEGLIGENCE  IN  CASE  OF  FIRE.  605 

A  plaintiff  cannot  be  guilty  of  negligence  while  in  the  lawful  use 
of  his  own  property  on  his  own  premises;'  as,  wliere  plaintiff's 
property,  on  which  were  combustible  materials,  was  destroyed  by 
lire  communicated  thereto  by  defendant's  negligence," 

Farmers  may  cultivate  and  use  their  premises  in  the  usnal  man- 
ner and  are  not  bound  to  resort  to  extraordinary  precautions  to 
guard  against  a  railroad  company  exposing  them  to  damage  from 
tire.'  Thus,  it  is  not  contributory  negligence  on  the  part  of  those 
owning  haystacks  near  a  railroad,  which  are  burned  by  fire  spread- 
ing from  the  right  of  wa}^,  to  fail  to  keep  the  grass  burned  off  of 
the  lands  between  the  stacks  and  the  right  of  way.*  Nor  will  his 
neglect  to  employ  the  usual  means  of  protection  be  held  as  con- 
tributory negligence,  where  the  land  owner  has  reasonable  ground 
for  supposing  himself  secure  by  reason  of  his  peculiar  surround- 
ings or  situation.  Where  a  stream  30  feet  wide  runs  between 
property  destroyed  by  a  prairie  fire  and  the  place  where  the  fire  is 
kindled,  the  failure  of  the  owner  of  the  property  to  apply  fire 
guards  around  it,  in  accordance  with  the  custom  of  the  country,  is 
not  contributory  negligence.* 

a.  Kot  Bound  to  Anticipate  J^egligence. 

While  the  land  owner  must  use  reasonable  care — which  is  care 
in  proportion  to  the  danger  to  which  he  is  exposed — while  others 
use  the  same  care,  he  cannot  be  required  to  anticipate  negligence 
on  the  part  of  others."     Nor  will  he  be  required  to  guard  against 

^Fero  V.  Buffalo  &  S.  L.  E.  Co.  22  N.  Y.  215:  Belloics  v.  Sackeit,  15  Barb. 
102;  Kellogg  v.  Chicar/o  &  N.  W.  B.  Co.  26  Wis.  223;  Cook  v.  Champlain 
Transp.  Co.  1  Denio,  96,  97,  102. 

"^Flynn  v.  San  Frnncuco  &  S.  J.  R.  Co.  40  Cal.  14;  Salmon  v.  Delaware  R.  Co. 
38  N.  J.  L.  5,  39  N.  J.  L.  299;  Erd  v.  Chicaqo  &  N.  W.  R.  Co.  41  Wi.s. 
65;  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Jones,  86  lad.  496;  Snyder  v.  Pitts- 
lurgh,  C.  &  St.  L.  R.  Co.  11  W.  Va.  14. 

^Patton  V.  St.  Louis  &  S.  F.  R.  Co.  87  Mo.  117,  1  West.  Rep.  760;  Philadel- 
phia &  R.  R.  Co.  V.  Eendrickson,  80  Pa.  182. 

^Louisville,  N.  A.  &  C.  R.  Co.  v.  Hart,  119  Ind.  273,  4  L.  R.  A.  549;  KnU)- 
fleisch  V.  Long  Island  R.  Co.  102  N.  Y.  520,  3  Cent.  Rep.  662;  Phihulflphia 
R.  Co.  V.  Schrdtz,  93  Pa.  345.  Contra,  see  Ohio  &  M.  R.  Co.  v.  Sham-fdt, 
47  111.  497;  Chicago  &  N.  W.  R.  Co.  v.  Simoiison,  54  III.  504;  Kesee  v.  Chi- 
cago &  iV.  W.  R.  Co.  30  Iowa.  78. 

^Powers  V.  Craig,  22  Neb.  621. 

^Snyder  v.  Pittsburgh,  C.  (&  St.  L.  R.  Co.  11  W.  Va.  14;  Kalfjfleisch  v.  Long 
Island  R.  Co.  102  N.  Y.  520,  3  Cent.  Rep.  662;  Vaughan  v.  Taff  Vak  R. 
Co.  3  Hurl.  &  N.  743. 


^Q6  IMPOSED  DUTIES,  PERSONAL.  [Part  III. 

■dangers  of  which  he  has  no  special  knowledge  and  which  are  with- 
out his  ordinary  experience.  "Where  sparks  from  a  steam  thresher 
set  fire  to  hay  stored  on  the  premises  of  another,  the  owner  of  the 
hay  being  engaged  in  plowing  at  the  time  in  the  same  field,  but 
having  made  no  protest  against  the  use  of  the  thresher,  in  an  ac- 
tion by  him  for  the  negligent  destruction  of  the  hay,  it  was  held 
that,  in  the  absence  of  proof  that  he  had  any  special  knowledge  of 
the  risk  of  using  such  machinery,  or  of  the  skill  and  competency 
of  those  who  had  charge  of  it,  he  was  entitled  to  an  instruction 
that  if  he  did  not  consent  to  or  participate  in  what  was  done,  he 
was  not  guilty  of  contributory  negligence.' 

b.  Must  not  Create  Peril  nor  Keglect  Effort  to 
Escape  Loss. 

The  occupier  of  land  will  not  be  permitted,  however,  to  place 
material  liable  to  ignite  in  dangerous  proximity  to  a  railroad," 
and  in  the  event  of  fire  he  will  be  required  to  use  reasonable  ef- 
fort to  prevent  loss,  Ko  recovery  can  be  had  for  injury  to  plain- 
tiff's property  by  fire  coming  from  defendant  railroad  company's 
engine,  where  plaintiff  could  have  put  out  the  fire,  and  failed  to 
make  any  effort  to  do  so.'  His  failure  to  make  the  attempt  is 
not  contributory  negligence,  where  it  would  be  impossible  to  sup- 
press the  fire  or  prevent  the  injury."  Where  material  is  so  placed, 
however,  with  the  consent  of  the  railroad  and  in  its  interest,  the 
fact  will  not  be  held  as  contributory  negligence  by  the  one  so 
placing  it.  Thus,  where  plaintiff  placed  cord-wood  on  the  right 
of  way  of  a  railroad  under  an  agreement  with  the  company  so  to 
do,  and  the  wood  was  destroyed  by  fire  communicated  by  a  pass- 
ing locomotive,  he  was  held  not  to  have  contributed  to  the  injury.' 

^Mooney  v.  Peak,  57  Mich.  259.     See  also  Slosson  v.  Burlington,  C.  R.  &  N.  B.  Go. 

51  Iowa.  294;  Kesee  v.  Chicago  &  N.  W.  B.  Co.  30  Iowa,  78;  Burlington  & 

M.  B.  B.  Co.  V.  Westover,  4  Neb.  268. 
'^Murpliy  V.  Chicago  &  N.  'W.  B.  Co.  45  Wis.  222;  Niskern  v.  Chicago,  M.  & 

St.  P.  B.  Co.  22  Fed.  Rep.  811 ;  Macon  &  W.  B.  Co.  v.  McConnell,  27  Ga.  481. 
'^Tilley  v.  St.  Louifi  &  S.  F.  R.  Co.  49  Ark.  535;  Illinois  Cent.  B.  Co.   v.  Mc- 
Clelland, 42  111.  355;  St.  Louis,  I.  M.  &  S.  B.    Go.  v.  Hecht,  38   Ark.  357; 

Chicaqo  &  A.  B.  Co.  v.  Pennell,  94  111.  448;  Doggett  v.  Bichmond  &  D.  B. 

Co.  78  N.  C.  305;  Snyder  v.  Pittsburgh,  C.  &  St.  L.  B.  Co.  11  W.  Va.  15. 
*Tilley  v.  St.  Louis  &  S.  F.  B.  Go.  49  Ark.  535;  McNarrav.  Chicago  &  N.  W. 

B.  Co.  41  Wis.  69. 
^Pittsburgh,  C.  &  St.  L.  B.  Co.  v.  Nelson,  51  Ind.  150. 


•Oliap.  XXXI.]    CONTRIBUTORY  NEGLIGENCE  IN  CASE  OF  FIRE.  6G7 

c.  Right  to  Bitild  on  One's  Own  Land. 

The  rule  that  the  concurrence  of  the  plaintifi's  negligence  with 
that  of  the  defendant  will  defeat  the  claim  to  reparation  is  modi- 
fied where  the  plaintiff,  knowing  the  danger,  voluntarily  places 
his  property  in  an  exposed  and  hazardous  position,  or  in  more  than 
ordinary  danger  from  the  lawful  acts  of  the  defendant.  This 
principle  was  illustrated  in  the  case  of  Cook  v.  ChamjylO/in 
Transp.  Co.,  1  Denio,  91,  where  it  was  held  that,  if  a  person  in  the 
lawful  use  of  his  own  property  exposes  it  to  the  danger  of  acci- 
dental injury  from  the  lawful  acts  of  others,  he  does  not  thereby 
lose  his  remedy  for  an  injury  caused  by  the  culpable  negligence 
of  such  other  persons;  so  that  the  owner  of  land  on  the  shore  of 
a  stream  or  lake  or  adjoining  the  track  of  a  railroad  may  lawfully 
l)uild  on  his  land,  though  the  situation  be  one  of  exposure  and 
liazard,  and  be  nevertheless  entitled  to  protection  against  the  neg- 
ligent acts  of  persons  lawfully  passing  the  same  with  vessels  or 
-carriages  propelled  by  steam  engines  by  which  said  buildings  may 
be  set  on  tire,  on  the  ground  that  the  owner  undertook  the  risk 
and  hazard  of  injury  by  mere  accident,  but  not  the  risk  of  injury 
by  negligence.* 

The  rule  that  a  plaintiff  cannot  recover  damages,  if  he  contrib- 
uted by  his  own  negligence  to  the  injury,  does  not  apply  to  a  case 
where  the  plaintiff  had  constructed  a  building  of  wood  and  of 
■combustible  materials  such  as  are  generally  used  in  such  a  building, 
upon  his  own  lands,  though  it  be  within  five  feet  of  a  dock  upon 
a  public  navigable  river  where  steamboats  are  in  the  habit  of  land- 
ing/ 

d.  JVot  Chargeable  on  Account  of  Changed  Con- 
ditions. 

One  will  not  be  guilty  of  contributory  negligence  for  failure  to 
remove  buildings  not  in  peril  at  the  time  of  their  erection,  be- 
•cause  the  location  of  new  buildings  or  changed  situation  has  ren- 

'See  VnvgJian  v.   Tuff  Vale  R.  Co.  5  Hurl.  &  N.  678;  Grand  Trtmk  R   Co. 

V.  Birhardson.  91  U.  S.  454,  23  L.  ed.  3o6:  Caswell  v.  Chicago  £  N.  W.  R. 

Co.  42  Wis.  i9S\  Jefferis  V.  P/dladelphia,  W.  &  B.  B.    Co.  3  Houst.    447; 

Burke  Y.  Louisville  &  N.  B.  Co.  7  Heisk.  451. 
^Kiaq  V.  American  Transp.  Co.  1  Flipp.  1.     See  also  Alpern  v.  Churchill,  53 

Mich.  607;  Hill  v.  Ontario,  S.  d  H.  B.  Co.  13  U.  C.  Q.  B.  503. 


668  IMPOSED  DUTIES,  PERSONAL.  [Part  IIL 

dered  them  liable  to  danger  from  lire.  While  a  person  who 
erects  his  buildings  at  or  near  a  railroad  track  is  presumed  to 
know  the  damages  incident  to  the  use  of  steam  as  a  motive  power,, 
and  assumes  some  of  the  hazards  to  which  his  property  is  exposed,' 
yet,  where  a  party  erects  his  buildings  at  a  reasonably  safe  distance 
from  the  railroad  track,  he  cannot  be  held  gnilty  of  negligence 
because  his  building  was  situated  so  as  to  be  liable  to  be  set  on 
fire  by  another  subsequently  erected  in  dangerous  proximity  to- 
the  track.*  ' 

e.  J\^o  Recovery  ivhere  Plaintiff  Consents  to   In- 
crease of  Danger. 

But  the  owner  cannot  recover  where  he  consents  to  the  placing 
of  dangerous  substances  or  materials  on  his  land  which  imperil 
his  property.  Thus,  the  fact  that  telegraph  and  telephone  poles- 
and  wires  prevented  the  extinguishment  of  afire  does  not  make 
the  company  owning  them  liable  for  the  loss,  where  the  owner  of 
the  building  burned,  on  whose  land  they  stood,  had  built  by  the 
side  of  them,  and  had  permitted  a  tenant  to  use  one  of  the  wires, 
and  had  never  objected  to  them  in  any  way  before  the  fire.'  Nor 
where  he  knowingly  avails  himself  of  machinery  in  a  dangerous 
condition  can  he  claim  freedom  from  the  charge  of  contributory 
negligence.'' 

f-  Special  Acts  and  Conditions  Present  Questions 
for  the  Jury. 

Where  a  locomotive  was  standing  at  rest  near  an  unfinished 
building  then  in  process  of  erection  and  in  the  hands  of  the  build- 
ers, whether  leaving  a  door  partly  open  through  which  sparks  from 
the  engine  flew — a  strong  wind  blowing  towards  the  house — was 
culpable  negligence  on  part  of  the  owner  or  his  servants  is  a  ques- 
tion which  may  properly  be  referred  to  the  jury  as  one  of  fact." 
An  open  window  through  which  sparks  communicated  was  held. 

^Toledo,  W.  &  W.  R.  Co.  v,  Larmon,  67  111.  68. 

^ToMm,  W.  &  W.  E.  Go.  V.  Maxfield,  73  111.  95. 

^Chaffee  v.  Tehphone  tfc  Teleg.  Constr.  Go.  77  Mich.  635,  6  L.  R.  A.  455. 

^Marquette,  H.  &  0.  R.  Go.  v.  Spear,  44  Mich.  169. 

^Fero  V.  Buffalo  &  S.  L.  R.  Go.  23  N.  Y.  209. 


Chap.  XXXI.]    CONTRIBUTORY  NEGLIGENCE  IN  CASE  OF  FIRE.  C69 

not  to  defeat  an  action  for  negligence.'  Permitting  the  roof  of  a 
building  to  get  into  such  a  condition  that  it  would  ignite  from  sparks 
did  not  render  the  owner  chargeable  with  negligence.* 

Where  a  railroad  company  alleged,  as  a  defense  to  a  suit  for 
having  destroyed  plaintiff's  house  by  fire,  communicated  by  one 
of  defendant's  locomotives,  that  plaintiff  was  guilty  of  contribu- 
tory negligence  in  leaving  his  premises  exposed  to  such  danger, 
the  jury  might  properly  consider  the  fact  that  the  house  was  up- 
wards of  forty  feet  from  the  right  of  way,  and  upon  a  high  stone 
foundation,  and  the  probabilities  as  to  danger,  if  defendant's  en- 
gines were  operated  with  reasonable  care.^  Such  questions  are 
properly  for  the  jury." 

^Loiiisville,  N.  A.  &  C.  R.  Co.  v.  Richarchon,  66  Ind.  43,  32  Am.  Rep.  94. 
^PUladelpliia  &  R.  R.  Co.  v.  Hendrickaon,  80  Pa.  183,  21  Am.  Rep.  97;  Jef- 

eris  V.  Philadelphia,  W.  &  B.  E.  Co.  3  Houst.  447. 
^Niclwls  V.  Chicago,  St.  P.  M.  &  0.  R.  Co.  36  Minn.  452. 
^Collins  V.  New  York  Cent.  &  H.  R.  R.  Co.  5  Hun,  499,  affirmed,  71  N.  Y. 
609;  Kansas  City,  F.  8.  &  G.  R.  Co.  v.  Owen,  25  Kan.  420;  Birgew.  Gardi- 
ner, 19  Conn.  507;  Missouri  Pac.  R.  Co.  v.  Kincaid,  29  Kan.  654;  Kansas 
Pac.  R.  Go.  V.  Brady,  17  Kan.  3S0;  Garrett  v.  Chicago  &  N.  W.  R.  Co.  36 
Iowa,  121;  Ross  v.  Boston  &  W.  R.  Co.  6  Allen,  87;  Tanner  v.  Neto  York 
Gent.  R.  Co.  108  N.  Y.  623,  11  Cent.  Rep.  82;  Fero  v.  Buffalo  &  S.  L.  R. 
Go.  22  N.  Y.  209;  Huyett  v.  Philadelphia  &  R.  R.  Co.  28  Pa.  373;  Chicago 
&  N.  W.  R.  Co.  V.  Simonson,  54  111.  504;  Erie  R.  Co.  v.  Decker,  78  Pa. 
295. 


II^DEX. 


ABANDONED  WATERS. 

ouce  held  navigable,  523 

ABANDONMENT. 

of  prescriptive  right  to  fish,  499 

of  easement  by  encroachment,  576 

question  of  fact  and  intention,  576 

ABATEMENT. 

of  public  nuisance,  right  to,  40,  75 

request  for,  64-56 

Individual  right  to  abate  nuisance,  75,  469 

of  nuisance  by  destruction  of  property,  533 

ABSOLUTE   RIGHTS.     See  Natural  Rights. 

ACCESS. 

to  water;  right  of  riparian  owner,  359 

to  tide-waters.  381 

to  river;  liability  for  cutting  off  by  diversion  of  channel,  432 

to  right  of  way;  effect  of  closing,  577 

ACCIDENT. 

inevitable,  liability  for,  106,  546 

as  creating  presumption  of  negligence,  133,  147 

injury  by,  in  constructing,  elevating  or  repairing  party-wall,  231 
liability  for  injury  by  animals,                                                          604,  G07 

as  to  escape  of  fire,  645 

ACCRETION. 

what  is;  right  to,  393 

right  to  remove  and  restore  flow  of  water,  461 

left  by  water  receding,  394 

ACCUMULATIONS.     See  Accretion. 

ACCUSTOMED   COURSE   OF    STREAM. 

what  is,  4(50 

ACID. 

offense  of  putting  in  waters  where  fish  are,  540 

ACQUIESCENCE. 

in  use  of  real  property  by  others,  25 

in  party-wall,  205 


672  INDEX. 

ACT. 

of  third  person,  liability  for,  104,  149,  368 

as  intervening  cause,  635 

on  one's  own  premises,  liability  for,  436,  439 

ACT   OF  CONGRESS. 

effect  on  pending  suit  or  prior  decree,  465 

ACT  OF   GOD. 

liability  for  injuries  caused  by,  106 

extraordinary  floods  or  accidents,  431 
overflow  caused  by  unprecedented  storm,                                        S33,  435 

suspending  easement,  575 

ACTION. 

for  nuisance  41,  70,  78,  434 

to  abate  a  nuisance  in  highway,  by  whom  brought,  76 

private  right  of,  for  obstructing  watercourse,  471 

cause  of,  for  breach  of  statutory  duty,  662 

efl'ect  of  Act  of  Congress  pending  suit,  465 

ACTION   ON   CASE. 

for  flowing  land,  434 

for  nuisance,  434 

ADDITIONAL   SERVITUDE. 

by  railroad  in  street,  86 

by  telegraph  poles  on  railroad,  97 

ADMIRALTY. 

rule  of  contributory  negligence  in,  368 

division  of  damages  in,  369 

what  navigable  waters  within,  370 

tidal  streams,  373 

non-tidal  navigable  rivers,                     "  375 

ADMISSION. 

in  deed  reserving  water-right,  459 

as  to  negligence  in  care  of  animals,  608 

of  State;  effect  on  ownership  of  tide  lands,  380 

ADVERSE   HOLDING. 

by  removal  of  obstructions  from  stream  under  license,  462 

ADVERSE  USE.     See  also  Prescription. 

of  water  ou  public  lands,  446 

ADVERSE   USER. 

to  extinguish  easement,  579 

AFFIRMATIVE   EASEMENT. 

what  is,  158 


INDEX.  673 

AGENT. 

notice  to  principal  by  knowledge  of,  625 

AGGRAVATION. 

matters  of,  in  pleading,  459 

AGISTER. 

liability  of,  622 

AGRICULTURAL   PURPOSES. 

rigbt  to  use  water  from  stream  for,  410,  411 

right  to  use  running  water  for,  441 

AXEL. 

limitation  of  writs  of.  177 

AIR. 

easement  of,  180 

from  street,  easement  of  abutting  owner,  84 

liability  for  polluting,  270 

shooting  bird  in,  from  highway,  528 

ALKALI   WORKS. 

as  a  nuisance,  151 
ALLEY. 

right  to  obstruct,  244 

right  to  erect  building  over,  245 

easement  in:  effect  of  destruction  of  buildings,  576 

effect  on  easement  of  building  over,  577 

ALLUVION. 

what  is;  right  to,  396 

imperceptible  addition  of;  test  of,  401 

ALMSHOUSE. 

use  of  farm  of  for  profit,  345 

AMUSEMENT. 

place  of,  requirement  of  fire-escapes  upon,  661 

ANCHOR. 

right  to,  for  fishing,  514 

of  vessel;  injury  to  fishery  by,  538 

right  to,  at  wharf,  568 

ANCIENT   LIGHTS. 

doctrine  of,  where  recognized,  179 

A.NGLING.    See  also  Fisheries. 

from  boat  in  navigable  streams,  529 

ANIMALS. 

what  word  includes,  638 

classification  of;  ferce  naturm,  domiUje  naturas,  586 

43 


674       *  INDEX. 

cruelty  to,  637 

wild;  ownership  of;  right  to  tal<e,  526 

prohibiting  the  killing  of,  in  certain  seasons,  641 

killing  in  highway,  529 

ownership  of  brood,  586 

liability  for  unruly  horse  killing  traveler,  144 

ferocious,  liability  for  keeping,  16 

ferw  naturce,  in  place  of  public  resort,  liability  for,  629 

contributory  negligence  in  case  of  injuries  by,  630 

duty  imposed  upon  owners  of,  585 

keeping  on  owner's  land,  585 

trespass  by,  587 

duty  to  fence  in,  589 

statutes  requiring  owner  to  fence  against,  592 

habit  of  animals,  605 
knowledge  of  dangerous  character,          587,  593,  604,  610,  615,  619 

knowledge  of  servant,  610,624 

authority  to  allow  running  at  large,  598 

driving  off  trespassing  animals,        ,  599 

impounding;  right  of,  60O 

authority  to  impound  and  sell,  601 

of  rights  of  owner  of  impounded  animals,  602 

municipal  ordinances  regarding  strays,  602 

damages  for  trespass  by  impounded  animals,  603 

liability  of  owners  of;  trespass  by,  604 

care  of  domestic  animals  under  special  circumstances,  607 

confinement,  when  sufHcient,  609 

horses  loose  or  exposed  in  public  place,  610 

diseased,  duties  of  owners  of;  warranty  of  soundness,  63S 

ANNEX. 

to  factory;  right  to  use  water  for,  482^ 

ANNOYANCE.     See  Nuisance. 

ANTICIPATION   OF  NEGLIGENCE. 

not  required,  665 

APERTURE. 

in  sidewalk,  108 

APIARY. 

as  a  nuisance,  588 

APPARENT   EASEMENTS. 

not  lost  by  merger,  573 

APPENDANT. 

easement,  165 

APPRAISERS. 

of  damages  for  trespass,  603 


INDEX.  •        G75 

APPROPRIATION 

for  purpose  of  easement,  264 

exclusive,  of  banks  of  navigable  watercourses,  387 

of  water;  priority  of,  444 

APPURTENANCES. 

what  included  in,  169 

passing  by  operation  of  law,  162 

appurtenant  easement,  159 

in  stairway,  165 

transfer  of  easement  as,  418 

to  mill  site,  419 

contract  for  water-right  as  appurtenant  to  land,  450 
right  to  draw  water  from  stream  as  appurtcuaut  to  land  conveyed,        458 

of  fishery,  498 

reservation  of,  560 
appurtenant  highway  between  high  and  low  water  mark,               74,  383 

AQUA  CURRIT  ET  DEBET   CURRERE  UT  SOLEBAT. 

409,544 
AQUEDUCT. 

prescriptive  right  to  maintain,  426 

AQUEDUCT    BOARD. 

suit  by  to  restrain  public  nuisance,  453,  468 

AREA. 

unguarded  as  a  nuisance,  72 

fall  of  watchman  into,  122 

ARMS   OF  THE   SEA. 

ownership  of,  380 

ARREST. 

for  violation  of  Fish  Laws,  535 

without  warrant,  536 

when  deemed  made,  536 

ARTHUR  KILL. 

power  of  Congress  to  authorize  bridge  over,  466 

ARTIFICIAL   CHANNEL. 

right  to  dam  up,  455 

ARTIFICIAL   EMBANKMENTS. 

causing  percolation;  liability  for,  430 

ARTIFICIAL    MEANS. 

increase  of  volume  of  water  in  stream  by,  552 

ARTIFICIAL   OYSTER   BED. 

what  is,  537 


676  INDEX. 

ASIATIC    CHOLERA. 

tearing  down  buildings  to  prevent  spread  of,  648 

ASSIGNMENT. 

of  license,  not  allowed,  185 

ASSIGNOR. 

duty  to  keep  wharf  safe,  567 

ASSIGNS. 

word  not  necessary  in  agreement  regarding  party-wall,  239 

ASSIZE. 

as  remedy  for  nuisance,  434 

ASSUMPSIT. 

implied  for  contribution,  226 

ASTORIA. 

title  of  land  between  high  and  low  water  mark,  388 

ATTORNEY-GENERAL. 

information  by,  to  prevent  diversion  of  water,  458 

to  restrain  public  nuisance,  468 

AUTHORITY. 

of  Legislature,  limit  of,  exceeding,  34,  35 

for  obstruction  of  stream,  389 

of  statute  as  a  defense  for  injury  from  busioess,  154 

to  impound  animals;  delegation  of,  601 

to  build  bridge,  434,  464 


BACK  FIRE. 

proximate  cause  of  injury  resulting  from,  651 

BACKING. 

of  water;  liability  for,  435 

caused  by  dam  or  obstructions;  liability  for,  432 

BAILEE. 

liability  for  animals  in  possession  of ,  "  622 

gratuitous;  liability  of,  490 

BAILIFF. 

water;  suit  by  for  penalty,  536 

BAKED   LANDS. 

caused  by  flooding,  433 

BALLOON. 

liability  of  occupant  for  attracting  crowd  into  garden,  144 


INDEX.  077 

BANKS.     For  riparian  rights  generally  see  also  Waters. 

right  to  land  upon,  359,  360 

of  navigable  watercourses;  appropriation  of,  387 

of  navigable  waters;  control  of  municipal  corporations  over,  393 

title  of  land  conveyed  along  water  front,  393 

BARB.WIRE   FENCE. 

liability  for  injuries  by,  597 

BARGES. 

liability  for  loss  of  by  striking  against  pier,  387 

right  of  owner  to  build  storehouse  for,  outside  levees,  39 1 

BARN. 

destruction  of;  effect  on  right  of  way,  576 

BARREL. 

fall  from  window  upon  traveler  as  presumptive  negligence,  156 

BARRIER. 

duty  to  make,  around  excavation  in  or  near  highway,  116 

necessity  of,  along  dangerous  places  in  highway,  314 
against  surface  water,  258,  303 
against  waters  of  the  sea  or  rivers;  right  to  erect,                           300,  435 

to  keep  off  overflow  water  from  river,  435 

right  to  erect  to  protect  land  from  sea  or  stream,  461 

effect  of,  on  navigability  of  stream,  403 

BARS. 

to  way,  176 

as  islands,  383 

BASEMENT. 

of  hotel,  making  adjoining  wine  cellar  too  warm;  injunction  against,    153 

BASHI    CREEK. 

navigability  of,  406 

BATTURE. 

what  is,  39 1 

use  of  as  landing  and  wharf,  391 

decision  as  to  what  part  of  soall  be  used  for  commerce,  390 

BAY. 

land-locked,  private  ownership  of;  rights  of  fishing  in,  512 

use  of  waters  for  hunting,  507 

state  control  of  fisheries  in,  495 

BEACH. 

meaning  of,  378 

toll  of  fish  for  drawing  boats  upon,  497 


€78  INDEX. 

BEAM. 

ou  bridge  over  trench,  liability  for  itijury  caused  by,  21 

BEASTS.    See  ANiMAxa. 

BED. 

in  sleeping-car,  breaking  down  of,  155 

of  stream,  ownership  of,  357 

of  tidal  stream,  ownership  of,  375 

not  included  in  deed,  385 

of  salt  water,  ownership  of,  580 

BEES. 

ferm  naturm;  ownership  of.  587 

liability  for  injuries  done  by,  587 

as  a  nuisance,  588 

swarm  of;  right  to  take,  587 

BIRDS. 

shooting  in  air  from  highway,  5S8 

killing  in  highway,  529 

prohibiting  the  killing  of  in  certain  seasons,  541 

BLACKBIRD   CREEK. 

jurisdiction  over,  378 

BLACKSMITH  SHOP. 

use  of  water  for,  571 

BLIND   MAN. 

injury  by  falling  into  hatchway  through  mistake  in  opening  door,        135 

BLINDNESS. 

partial,  of  warranted  horse,  63;5 

BOAR. 

knowledge  of  character  of,  606 

BOARD   OF   CONSERVATORS. 

suit  by,  for  penalty,  636 

BOARD-SAW. 

right  to  put  into  shingle-mill  for  which  water  is  granted,  483 

BOAT-HOUSE. 

as  part  of  wharf,  559 

right  of  action  by  owner  for  interference  with  flow  of  water,  561 

BOATING. 

for  recreation,  customary  right,  188 

on  private  stream;  obstruction  by  posts  and  chains,  8.57 

on  small  private  lakes;  right  of;  enjoyment  in  common,  581 


ESTDEX.  679 

BOATS. 

hindering  passage  of  by  filling  up  Oats,  381 

damage  to  by  defective  draw-bridge;  right  of  action  for,  472 

right  of  action  of  owner  for  obstrucliou  to  lake,  473 

wharf  boat  as  part  of  wharf,  467 

scuttbng  as  proximate  cause,  656 

BOG. 

right  to  draw  water  from,  257 

BOILER. 

liability  for  explosion  of,  153 

BONA  FIDE    PURCHASER. 

right  of  as  to  suspended  easement,  578 

BOOM   COMPANIES. 

duties  and  liabilities  of,  556 

compensation  for  driving  logs,  557 

BOULDER. 

under  water  at  wharf;  liability  for,  566 

BOUNDARY. 

starting  point  at  middle  of  party-wall,  208 

by  fixed  monument  which  has  width,  394 

of  land  on  rivers,  394 

by  meandered  stream,  395 

on  navigable  rivers,  387 

on  navigable  stream  above  tide-water  in  Kentucky,  388 
on  unnavigable  portion  of  navigable  river  between  island  and  mainland,  388 

on  sea  shore.  393 

BOX. 

in  main  ditch  for  passage  of  water,  450 
BOY.     See  Children. 

BRAKEMAN. 

injury  to,  by  telegraph  wire,  140 

BREAKWATER. 

constructed  under  Act  of  Congress,  380 

land  reclaimed  by  ownership  of,  563 

BREWING. 

right  to  use  running  water  for,  441 

BRICK. 

shaken  out  of  defective  bridge  abutment;  liability  for  injury  by,  1 56 

BRIDGE. 

across  street  for  private  use  as  a  nuisance,  264 

over  trench;  liability  for  injury  to  passer  by  loose  beam,  1 2 


680  INDEX. 

breaking  under  steam  boiler,  656 

liability  for  injury  in  repairing,  659 

destruction  of  by  storm  as  presumption  of  negligence,  16& 

destruction  of  resulting  from  continued  rains,  431 

joint  expense  of  towns,  464 

of  railroad;  improper  construction  of,  256 

causing  overflow  of  lands;  prescriptive  right,  489' 

authority  to  build;  liability  for  want  of  care,  484 

right  of  owner  of  land  on  both  sides  of  stream  to  build,  461$ 

for  public  or  general  use;  right  of  private  owner  to  build,  468 

over  navigable  streams;  power  to  authorize,  464 

as  nuisance,  260,  463,  478 

continuation  of  as  new  nuisance,  478 

extending  beyond  bank,  464 

protest  of  State  against,  465 

legalized  pending  suit  by  Act  of  Congress,  465' 

withdrawal  of  license  to  build,  466 

failure  to  build  as  prescribed  by  law,  467 

necessity  of  changing  piers,  467 

right  to  break  through,  470 

as  obstruction  to  lake;  right  of  action  of  boat  owner,  478 

injury  to  by  floatage  of  logs,  558 

BROOD. 

of  domestic  animals;  ownership  of;  usufructary,  ownership  of  brood,    586 

BROOK.     See  also  Waters. 

towing  on,  as  evidence  of  navigability,  405 

is  a  public  highway,  when,  405 

BRUSH. 

prohibiting  burning  of  during  drought,  660 

BUILDINGS. 

liability  for  falling  snow  and  ice  from  roof,  8,  47,  105 

duty  to  keep  in  safe  condition,                                                :^_  9 

shutting  off  prospect  or  breeze  by,  9 

duty  to  make  secure,  103 

fall  of,  from  defective  construction,  51 

as  cause  of  fire,  652 

rendered  insecure  by  stranger,  104 

adjacent,  repairs  to,  105 

burning  of,  by  permitting  water  to  reach  lime  therein,  156 

in  dangerous  condition,  liability  for  leaving  standing,  156 

reserving  rights  in  on  sale,  160 

one  part  tributary  to  other,  easements  in,  164 

right  of  support  from  adjoining  premises,  190 

right  to  erect  over  alley,  245 
placing  materials  for,  in  highway,                                             99,  249,  250 


INDEX.  C81 

decay  of,  effect  on  easement  for  access  to,  575 

destruction  of;  effect  on  right  to  alley  or  right  of  way,  576 

to  prevent  spread  of  fire,  647 

of  cholera,  648 

to  abate  nuisance,  648 

by  fire,  649-660 

right  to  build  on  one's  own  land,  667 

risk  of  fire,  667 

exposure  of  building  to  fire,  667 

hazard  of  fire  to  building,  667 

consent  to  increase  of  danger,  668 

BULKHEAD. 

right  to  erect  to  protect  land  from  sea  or  stream,  461 

BULL. 

knowledge  of  dangerous  character  of,  606 

liability  for  leading  through  street,  608 

BURDEN  OF  PROOF. 

as  to  injury  from  use  of  adjoining  premises,  151 

of  negligence,  as  to  fires,  648 

in  case  of  injury  to  servant,  1 33 

BURNING  GOOSE. 

as  cruelty,  639 

BUSINESS. 

lawful,  as  nuisance,  11,  14,  151,  152 

of  boat  owner;  injury  to  by  bridge,  473 


CALF. 

injury  to  by  sow  and  pigs,  593 

CALIFORNIA. 

law  of  as  to  appropriation  of  water,  448 

CANAL. 

liability  of  company  for  inundating  lands,  15 

damage  for  overflowing  lands  in  building,  ,                             270 

as  navigable  water,  370 

CANAL  COMPANY. 

right  to  appropriate  waters  of  stream,  443 

CAR. 

liability  for  injury  by  to  boy  who  unfastens  brakes,  584 

CARE.    See  also  Negligence. 

ordinary,  what  is,  3 1 

amount  required  where  act  if  unauthorized  would  be  a  nuisance,  34 


682  INDEX. 

to  prevent  damages;  necessity  of,  435 

degree  of  necessary  in  confining  water,  438 

required  of  owners  of  machinery  to  prevent  injury  to  others,  583 

in  respect  to  risk  of  fire,  642 

CARRIAGES. 

right  to  use  running  water  to  wash,  441 

CARRIER. 

liability  for  breaking  of  rail  by  frost,  137 

drowning  of  passenger,  liability  of  vessel  for,  138 

liability  for  injury  to  passenger  by  accident,  139 

presumption  as  to  defective  appliances  from  injury  to  passenger,  155 

by  ferry;  liability  of  488 

division  of  damages  for  injury  to  freight,  369 

duty  to  feed  and  water  stock,  639 

CASE. 

action  on  for  flowing  land,  434 

for  nuisance,  434 

CATCH  BASINS. 

in  highway;  percolation  of  water  from,  350 

CATTLE.     See  also  Animals. 

right  to  water  from  running  brook,  442 

of  owner  of  dominant  estate;  duty  to  keep  from  right  of  way,  245 

duy  to  prevent  from  trampling  in  ditch  of  another,  257 

duty  of  owner  to  keep  on  his  own  land,  585 

duty  to  fence  against,  592 

authority  to  run  at  large,  596 

driving  off  trespassing  cattle,  599 

impounding  and  selling,  600 

rights  of  owner  of  impounded  animals,                               '  602 

municipal  ordinances  regarding  strays,                         .  602 

damage  for  trespass  by  animals  impounded,  603 

dishorning  as  cruelty,  636 

duty  of  carrier  to,  639 

needless  confinement  and  cruelty,  639 

CAUSA  PROXIMA  NON  REMOTA  SPECTATUR.  658 

CAUSE. 

may  create  presumption  of  negligence.  147 

proximate;  rule  as  to,  363 
See  further  Proximate  Cause. 

CAUSEWAY. 

across  stream;  liability  for  repair,  436 

CELLARS. 

damage  from  water  leaking  out  of  pond,  430 


INDEX. 


683 


CESSANTE  RATIONE  CESSAT  IPSA  LEX.  286 

CESSPOOL. 

public;  failure  to  keep  in  repair,  293 

CHANGED  CONDITIONS. 

as  affecting  risk  of  fire,  667 

-CHANNEL. 

natural,  what  is,  355 

of  floatable  stream;  right  to  change  or  deepen,  413 

inadequate;  liability  for  consequent  overflow,  435 

filling  up  by  sewage,  562 

CHARGES. 

for  wharfage,  568 

of  boom  companies,  556 

for  driving  logs,  557 

CHATTEL. 

law  of  easements  does  not  apply  to,  159 

CHESAPEAKE  BAY. 

right  of  private  owner  to  recover  for  use  by  United  States  of  land  un- 
der water  for  light-house,  380 

CHILDREN. 

attracted  from  public  street,  duty  toward,       •  26 
injured  by  dangerous  machines  or  apparatus,                                     29,  584 

injury  by  dangerous  platform  near  highway,  32 

by  dangerous  machinery,  3 1 

liability  for  death  of,  in  unguarded  vault  near  sidewalk,  122 

death  by  rolling  of  water  pipe  from  pile,  137 

injury  to  by  horse  on  street,  613 

CHIMNEY. 

fall  of  stone  coping  from,  149 

fall  of,  caused  by  wire  attached  without  owner's  consent,  149 

CHOLERA. 

tearing  down  buildings  to  prevent  spread  of,  648 

CHUNKS  OF  LAND. 

caused  by  overflow,  433 

CITIES.    See  also  Municipal  Corporations. 

yielding  of  rights  by  inhabitants,  259 

use  of  waters  to  supply,  45 1 

CITIZENS. 

discretion  in  favor  of  as  to  fishing  privileges,  492 


684 


INDEX. 


CLAMS. 

right  to  take  from  flats,  6Sff 

right  to  dredge  for,  687 

CLASSIFICATION. 

of  animals,  SSS- 

CLEARING. 

setting  fires  for,  644 

CLOD. 

caused  by  overflow  of  lands,  433- 

CLOTHES. 

right  to  hang  in  another's  yard,  159 

CLUBS. 

cf  sportsmen,  attempt  to  acquire  exclusive  rights,  515- 

COACH. 

breaking  down  or  upsetting  as  raising  presumption  of  negligence,  155,156 
right  to  stop  in  street  for  passengers,  248 

remaining  for  unreasonable  time  in  public  street,  849 

COAL. 

falling  from  tender  of  locomotive,  injury  to  track  walker  by,  13T 

refusal  to  permit  discharge  upon  wharf,  564^ 

COAL  BOATS. 

authority  of  owner  to  build  storehouse  for  outside  levees,  39 1 

COAL  HOLE. 

in  sidewalk,  defectively  covered;  liability  for  injury  by,  48,  110- 

liability  of  landlord  for  leaving  unguarded,  52 

in  case  of  premises  acquired  subject  to  lease,  liability  for,  59- 

unsecured  covering  to  as  a  nuisance,  73- 

COAL  MINES. 

precautions  of  master  against  danger,  13T 

COAL  PIT. 

liability  for  fire  communicated  from,  644 

COFFERDAM. 

in  outlet  of  lake;  causing  flooding  of  farm,  308- 

COG-WHEEL. 

unguarded,  injury  to  child  by,  29' 

COLD. 

as  unsoundness  of  horse,  635- 

COLLISION. 

liability  for  injury  caused  by,  144 

division  of  damages  in  case  of,  369 


INDEX.  685 

COLONIES. 

law  of  concerning  fire,  64 1 

COLORADO. 

right  as  to  appropriation  of  water  in,  447 

COLT. 

killed  by  horse  in  street,  608 

COLUMBIA    RIVER. 

donation  land  claim  upon,  560 

COMMERCE. 

power  to  regulate  includes  power  to  build  light-house,  380 

obstructions  of  navigable  rivers  in  aid  of,  not  nuisance,  463 

COMMISSIONERS. 

authority  of  to  let  cattle  run  at  large,  598 

COMMON. 

right  of  by  reservation  of  right  to  cut  timber  and  of  grazing,  579 

liability  and  care  for  animals  on,  593 

rights  in  fisheries,  498 

COMMON   LAW. 

adaptation  of,  549 

COMMON  CARRIER.     See  Carrier. 

COMPACT. 

between  Virginia  and  Maryland,  561 

provision  as  to  wharves,  561 

COMPARATIVE   NEGLIGENCE. 

rule  in  Illinois  and  Georgia,  631 

COMPENSATION  FOR  TAKING    PROPERTY.      See    also 
Eminent  Dojiaes'. 
constitutional  provision,  435 

CONCEDITUR   ET   ID   SINE   QUO  RES   IPSA   HABERI 

NON  DEBIT.  418 

CONDITIONS. 

change  of  as  affecting  risk  of  fire  to  buildings,  667 

CONDUIT. 

with  water  pipes  passing  with  grant  of  messuage,  418 

CONFINEMENT. 

of  animals,  what  sufficient,  609 

CONFLICT. 

of  rights  in  water;  reconciling,  549 


6S6  INDEX. 

CONFUSION. 

of  logs,  55ft 

CONGRESS. 

power  as  to  lands  below  low-water  mark  in  Stale,  8*79 

authority  of  to  build  bridge,  46& 

power  to  legalize  bridge,  465 

employing  Secretary  of  War  as  agent,  465 

CONSERVATORS. 

suit  for  penalty  by,  536 

CONSTITUTIONAL   LAW. 

provision  as  to  compensation  for  taking  property,  435 

as  lo  taking  of  water  from  stream  without  compensation,  452 

as  to  compelling  construction  of  fish-way  past  dam,  633^ 

discretion  in  favor  of  state  citizens  as  to  fi.sheries,  493 

validity  of  statute  to  protect  game,  643- 

CONTAGIOUS   DISEASE. 

of  animals;  duty  of  owners,  633 

CONTINUANCE. 

of  nuisance,  liability  for,  470' 

CONTRACT. 

for  driving  of  logs,  not  revocable,  557 

CONTRACTORS. 

attempt  to  transfer  duty  to,  37,  38,  39 

CONTRIBUTION. 

as  to  expense  of  party- wall,  215,  225 

to  maintenance  of  dam,  flume  and  gate  does  not  give  right 

to  have  water  held  back,  423 

to  maintenance  of  dam  or  reservoir,  547 

CONVENIENCE. 

as  a  basis  for  an  easement,  163-172- 

CONVEYANCE. 

reference  by,  to  plan,  161 

COPING. 

fall  of,  from  chimney,  149 

CORD-WOOD. 

destruction  of  by  fire  set  by  locomotive,  666 

CORN. 

grant  of,  how  made,  355 


INDEX. 


GST 


CORNICE. 

projecting  over  street  as  a  nuisance,  264 

CORNS. 

as  unsoundness  of  horse,  G35 

CORPORATION. 

distinction  between  entity  and  frauriiiscs,  87 

authorized  by  Congress  to  bridge  navigable  waters,  466 
compelled  by  State  to  maintain  drawbridge  as  condition  of  recognition,  466 

right  of  action  for  nuisance,  471 

effect  of  ouster  on  fishery  rights,  500 

effect  of  grant  to  dredge  for  oysters,  500 

duty  to  make  fish-way  past  dam,  533 

liability  for  animals  kept  by  servant,  621 

CORPOREAL   HEREDITAMENT. 

right  to  use  of  running  water,  441 

CORRUPTION  OF  WATER.    See  also  Pollutio:^. 

prescriptive  right  as  to,  426 

COSINAGE. 

limitation  of  writs  of,  _  177 

COTTON, 

proximate  cause  of  loss  by  fire  after  delivery  at  carrier's  sheds,  656 

COUNTY   COMMISSIONERS. 

authority  of  to  let  cattle  run  at  large,  598 

COUPLING   PIN. 

injury  by  fall  of,  from  car  platform,  143 

COURSE   OF   STREAM. 

accustomed,  what  is,  460 

COURTS. 

federal;  power  to  enjoin  interference  with  obstructions  to  navigation,  468 

COVENANT. 

to  repair  as  affecting  liability  for  nuisance,  61 

respecting  party  walls,  204,  219 

personal,  219 

as  to  cost,  merely  personal,  184,  220 

as  to  water-right  running  with  land,  450 

to  treat  dividing  line  as  fence,  596 

COW. 

injury  to  by  sow  and  pigs,  593 

negligence  in  driving  through  street,  608 

CRABS. 

lawful  time  for  planting  and  gathering.  540 


688  INDEX. 

CREATION. 

of  easement  by  deed,  180 

CREEK.     See  also  Waters. 

pollution  of,  8 

prescriptive  right  as  to  changing  channel,  426 

CRIBBING. 

as  unsoundness  of  horse,  635 

CROPS. 

liability  for  destruction  of  caused  by  failure  to  keep  wall  along  river 

in  repair,  461 

duty  to  protect  against  defective  cattle-guards,  632 

CROSSING. 

prescriptive  right  of  way  across  railroad,  239 

CROWD. 

liability  for  attracting,  144 

CRUELTY. 

of  Game  Laws,  503 

to  animals,  637 

CUJUS  EST  SOLUM  EJUS  EST  USQUE  AD  COELUM.   354 

CULVERTS. 

liability  of  city  for  insufficiency  of,  328 

CURRENT. 

not  necessary  to  navigability  or  riparian  rights,  402 

CUSTOM. 

to  create  easement,  188 

not  necessary  to  the  public  right  to  use  floatable  streams,  402 

as  to  appropriation  of  water,  448 

as  affecting  right  of  fishing  in  stream,  502 

does  not  justify  fishing  in  another's  waters,  499 

to  establish  right  of  inhabitants  of  locality  to  fishery,  500 
as  to  exclusive  right  of  riparian  owner  to  use  nets  or  other  appliances 

fastened  to  soil  for  fishing,  518 

as  to  leaving  gearing  of  mill  uncovered,  584 

to  give  right  to  make  wharf ,  etc.,  559 

French,  as  to  shooting  and  fishing  in  the  Northwest,  525 

CUSTOMER. 

right  to  rely  upon  presumed  security  from  danger,  150 


DAM. 

ownership  of  brood  of,  586 

DAMAGES. 

duty  to  reduce  to  mimimum  in  changing  party- wall,  S15 


INDEX.  G8*J 

ability  to  shun  as  defense,  435 

equal  division  of,  in  admiralty,  368 

for  injuring  land  not  taken  or  abutting  on  land  taken,  266 

occasioned  by  highway,  267 

to  riparian  owner  for  constructing  road  along  shore,  359 

for  diversion  of  waters  from  stream,  451 

nominal,  for  waters  taken  from  stream  for  city,  451 

for  future  unlawful  diversion,  459 

special  or  particular  in  case  of  nuisance;  what  is,  472 

for  continuance  of  improperly  constructed  bridge,  476 

for  partially  destroying  fish  nets,  539 

by  each  of  several  animals;  presumption  concerning,  594 

for  trespass  by  animals  impounded,  603 

for  breach  of  warranty,  634 

DAMNUM  ABSQUE  INJURIA. 

72,  147,  196,  267,  280,  298,  305,  308,  382,  442,  463,   559 

DAMS. 

liability  for  continuing  after  conveyance  of  premises,  55 

degree  of  care  necessary  in  constructing,  43 1 

sufficiency  of  liability  for  negligence,  439 

damages  for  improper  construction  or  maintenance  of,  546 

liability  of  builder  when  others  are  in  possession,  434 

damages  for  overflowing  lands  in  making,  270 
liability  for  escape  of  water  from,                                                  271,  272 

injury  to  by  upper  mill  owner,  545 

decay  of;  title  to  soil  left  bare,                                                         .  398 

substitutiug  permanent  structures  for  flash  boards,  419 
prescriptive  right  to,                                                                          262,  550 

for  what  height,  262 

right  by  prescription  to  use,  437 

change  of  right  to  by  prescription,  428 

injunction  to  restrain,  438 

to  protect  land  from  ill  effects  of  other  dam,  436 

as  obstruction  to  stream,  460 

abatement  of,  as  nuisance,  470 

as  both  public  and  private  nuisance,  478 

in  floatable  stream,  rights  of  owner,  413 

compelling  owner  to  maintain  fish-ways,  532 

duty  of  owner  to  make  sluiceways  for  logs,  549 
as  a  nuisance  to  floaters  of  logs,                                                        415    551 

sufficiency  of  sluiceways,  552 

effect  of  artificial  increase  of  volume  of  water,  552 

across  technically  navigable  stream,  418 

proximate  cause  as  to  injury  by  tearing  out,  650 

contribution  to  maintenance  of,  547 

does  not  give  right  to  have  water  held  back,  423 
44 


690  INDEX. 

DANGER.     See  also  Negligence. 

from  falling  walls,  8S 

hidden,  failure  to  disclose,  150 

DEATH. 

caused  by  train,  as  creating  presumption  of  negligence,  134 

of  wife  of  tenant  for  lack  of  fire-escape,  662 

DEBRIS. 

from  quarry;  liability  for  throwing  in  stream,  432 

DECOYS. 

right  to  anchor  for  wild-fowl,  504 

right  to  fasten  to  soil  for  wild-fowl,  518 

disturbance  of,  505 

willfully  disturbing  by  shooting,  527 

DECREE. 

restraining  diversion  of  waters;  error  in,  45& 

DEDICATION. 

of  highway,  effect  of,  83 

of  strip  of  land  for  highway  by  sale  of  house  fronting  on,  184 

of  way;  presumption  of  from  user,  237 

of  right  of  fishery,  499 

does  not  apply  to  public  landings,  559 

DEED. 

of  property  including  tidal  stream;  does  not  convey  bed,  385 

construction  of,  5'72 

DEER. 

penalty  for  killing,  527 

DELAWARE   RIVER. 

title  of  State  to,  in  trust,  385 

right  to  fisheries  in,  514 

DELEGATION. 

of  authority  to  impound  animals,  601 

DERELICTION. 

what  is;  right  to,  S96 

DESCRIPTION. 

reference  to  plan  as  part  of,  161 

DESERT   LAND   ACT. 

as  to  appropriation  of  waters  on  public  lands,  444 

DES   MOINES    RIVER. 

repeal  of  Act  of  Congress  declaring  navigable,  386 


I^'DEX.  691 

DESTRUCTION. 

of  party-wall,  216 

of  nets  illegally  used.  5?,3 

of  buildings,  effect  on  alley  or  right  of  way,  576 

to  prevent  spread  of  fire,  647 

of  cholera,                                                                             ,  648 

to  abate  nuisance,  648 

DETENTION. 

of  water,  by  mill-owner;  reasonableness  of,  545 

in  pond,  for  water  supply,  257 

DETERMINATION. 

of  rights  as  to  diversion  of  water  into  ditches;  how  made,  450 

DIMINUTION. 

of  watercourse  caused  by  reasonable  use,  442 

DIP-NET. 

prohibiting  use  of,  535 

DISEASE. 

of  animals,  632 

contagious;  duty  of  owners,  632 

warranty  of  soundness,  633 

DISHORNING   CATTLE. 

as  cruelty  to  animals,  637 

DISTURBANCE. 

of  decoy,  505,  527 

of  rookery,  528 

DITCH. 

across  farm;  duty  as  to  preventing  cattle  from  trampling  in,  257 

change  from  irrigating  ditch  to  mill-race,  263 

open  on  highway;  damage  to  property  by,  322 

in  street;  injuries  from  loosening  soil,  333 

liability  of  unincorporated  town  or  village  for,  351 

right  to  discharge  surface  water  through,  424 

to  empty  sag  holes  into  ravine,  424 

change  or  obstruction  of  right  to  by  prescription,  428 

Nevada  Act  as  to  diversion  of  water  by,  445 

enlargement  of  under  Colorado  Statute,  448 

increasing  flow  of  water;  effect  of,  on  liability  for  overflow,  467 

DIVERSION. 

of  water  from  steam;  right  to,  409,  440 

by  lower  riparian  owner;  effect  as  to  upper  owner,  425 

of  waters  to  supply  cities,  451 

of  flowing  water;  remedy  for,  455 


692  INDEX. 

DIVISION   OF   DAMAGES. 

in  admiralty,  S68 

DOCK. 

as  species  of  highway,  48 

injurj'  by  stepping  off  gang  plank,  not  guarded,  392 
use  by  dockmaster  of  building  on  piles  connected  with  dock  by  bridge,  392 

establishment  of  line  by  Legislature,  561 

liability  of  owner  for  defect  in  bottom  of  stream,  566 

DOGS. 

injuring  sheep,  595 

injury  by;  contributory  negligence,  630 

owner's  knowledge  of  character  of,  605 

duties  imposed  upon  owners  of,  614 

freedom  of  streets;  liability  for  trespass  on  close,  614 

damage  by  while  trespassing,  615 

vicious;  liability  of  owner,  615 

owner  not  insurer,  622 

protection  of  property  in;  right  to  kill,  625 

of  other  person;  liability  for  injury  by,  626 

injury  by  several;  liability  for,  62*? 

presumption  as  to  amount  of  damage  by  each,  595 

license  or  tax  upon,  628 

liability  of  harborer  of,  621 

DOMESTIC  ANIMALS.     See  Animals. 

DOMESTIC  PURPOSES. 

use  of  water  from  stream  for,  410,  411 

DONATION  LAND  CLAIM. 

rights  of  owner  as  to  shore,  560 

DORMANT  CLAIMS. 

to  easements;  presumptions  concerning.               ,  580 

DRAG. 

for  oysters,  etc. ,  prohibited,  537 

DRAG  SEINES. 

prohibiting  use  of,  535 

DRAGOON. 

illegally  billeting,                                                      .  14 

DRAWBRIDGE. 

compelling  railroad  to  maintain,  466 

DRAIN. 

in  streets,  right  to  make,  98 

liability  for  injury  caused  by,  124 


INDEX. 


G93 


prescription  to  acquire,  259 

in  and  throiigli  private  way  not  to  outlet  beyonil,  259 

liability  for  damage  from  escape  of  water,  270 

percolation  from  gutters  and  catch  basins  in  liighway,  350 

under  wbat  circumstances  city  liable  for  damages  from,  325 

private,  when  does  not  become  public  sewer,  333 

liability  of  unincorporated  town  for,  351 

right  to  over  lands  of  others,  cut  off  by  wharves,  381 

right  to  discharge  surface  water  through;  to  empty  sag   holes  into 

ravine,  424 

abandonment  or  disuse  of,  580 

interruptions  of  use  of  easement,  581 

obstruction  of  use  of  easement,  581 

obstacle  to  use  of  easement,  581 

DRAINAGE. 

natural;  right  of  land  owner  to  disturb,  299 

right  of;  effect  of  clause  in  deed,  572 

DREDGE. 

lor  oysters,  clams,   etc.,  prohibited,  537 

DRINKING  TROUGHS. 

in  highway,  as  nuisance,  336 

DRIVING  LOGS.     See  Logs. 

DROGUE. 

right  gained  by  striking  fish  with,  496 

DROUGHT. 

liability  for  starting  fire  in,  642 

DROWNING  LANDS.     See  Flooding. 

DUCKS. 

right  to  decoy  and  shoot,  504 

wild,  right  to  shoot,  514 

DUTIES.    See  also  Negligence. 

attendant  upon  the  possession  of  rights  and  ownership  of  property,  7 

transferred;  liability  for  failure  to  perform,  35 

to  keep  premises  safe,  18 

to  licensee,  25 

of  occupier  of  premises  adjoining  street,  26 

to  children  attracted  into  danger,  26 

as  to  conduct  of  business  which  would  be  a  nuisance  if  unauthorized,    34 

of  owner  of  premises  as  to  nuisance,  40-68 
See  also  Nuisaijce. 

DYE. 

injury  from,  to  purchaser  of  cloth,  136 


694  INDEX. 

DYKES.    See  also  Barriers. 

to  prevent  towing  ice  cakes  across  premises,                    '  885 

EARTH.     See  Land. 

EASEMENTS. 

and  servitudes  defined,  157 

tiatural,  what  are,  355 

rights  having  semblance  to,  356 

how  created,  159,  355 

by  express  grant,  159 

by  implied  grant,  163 

by  license;  estoppel,  181 

by  prescription,  176 

by  custom,  188 

for  extension  of  house,  169 

of  light  and  air,  177 

reciprocal,  for  lateral  support,  190 

as  to  use  of  highway,  35 

private,  in  highway,  S35 

of  lot  owner  in  street,  81 

extent  of  presumption;  right  limited  by  user,  238 

negligence  as  affecting,  241 

negligent  failure  to  discover  continuous  or  apparent  easement,  241 

negligence  in  the  use  or  in  interrupting  the  exercise  of  an  easement,      243 

in  a  way,  243 

in  light,  253 

in  water  naturally  or  artificially  flowing,  255 

in  harvesting  ice,  260 

identity  of  use,  262 

appropriation  for,  264 

use  to  create  prescription,  234 

as  limiting  easement,  238 

passing  by  implication,  241 

purchaser  ignorant  of  easement,  241 

duty  to  discover,  241 

rights  of  owner  of  soil,  258,  265 

term  "natural  easement"  applied  to  flowing  water,  355 

transfer  of  by  grant  of  dominant  estate,  418 

in  rivers,  streams  and  ponds,  acquired  by  grant;  parol  license,  418 

limitation  as  to  quantity  of  water  granted,  422 

in  flowing  water,  acquired  by  prescription,  424 

right  to  divert  water  from  stream,  440 

right  to  use  of  running  water,  441 

bow  extinguished,  570 

by  release,  570 

by  merger  in  union  of  titles;  natural,  necessary  and  apparent  not  lost,  573 

where  usefulness  ceases,  574 


INDEX.  695 

exercise  of  right  suspended  by  superior  power,  575 

renunciation  or  abandonment  by  encroachment,  576 

abandonment  a  qucslion  of  fact  and  intention,  577 

adverse  user  to  extinguish,  579 

extinguishment  of  prescriptive  easement;  admission,  581 

EAST   RIVER. 

rights  of  owners  of  as  to  lands  between  high  and  low  water  mark,        385 

ECZEMA. 

damages  for,  636 

attempt  to  cure  animal,  636 

ELECTRIC   CARS. 

right  to  use  of  street,  94,  251 

ELECTRIC   COMPANY. 

liability  for  explosion  of  insuflScient  apparatus,  156 

ELEVATOR. 

unguarded;  liability  for  injury  to  child,  29 

opening  near  sidewalli;  liability  for  leaving  unguarded,  119 

injury  to  passenger  by  fall  of;  liability  for,  136 

injury  by  fire  from  locomotive,  654 

EMBANKMENT. 

want  of  railing  along;  liability  for  injury,  47 

artificial;  causing  percolation  of  water,  430 

drowning  lands  of  another;  liability  for,  430 

to  lieep  off  overflow  water  from  river,  435 

right  to  construct  to  protect  laud  from  stream,  461 

See  also  Barriees. 

abatement  of  as  nuisance  to  private  owner,  469 

EMINENT   DOMAIN. 

additional  servitude,  by  railroad  in  street,  86 

by  telegraph  poles  on  railroad,  97 

damages  for  constructing  road  along  shore,  359 

appropriation  of  pier;  compensation  to  owner,  386 

compensation  for  taking  water  from  stream,  452 

diversion  of  stream;  necessity  of  compensation,  452 

diminution  of  stream;  necessity  of  compensation  for,  452 

ENCROACHMENTS. 

upon  highways,  69 

not  legalized  by  lapse  of  time,  7 1 

exception  by  statute,  7 1 

by  party-wall.  205 

on  easement;  effect  of,  576 

"way  held  in  common;  effect  of  encroachment,  576 


696 


INDEX. 


ENGINE. 

insufficient  to  avert  consequences  of  accident,  137 

ENTRANCES. 

to  building  from  street,  duty  to  guard,  121 

ENTRY. 

limitation  of  writs  of,  177 

EQUITY. 

aid  to  prevent  diversion  of  water,  455 

discretion  of  equity  as  to  injunction,  456 

jurisdiction  over  obstruction  to  flowing  water,  47ft 

EROSION. 

loss  of  land  by,  40O 

ESCAPE.     See  Fire-Escape. 

ESTOPPEL. 

doctrine  of,  183- 

by  silence  or  conduct,  183- 

as  to  revocation  of  license,  181 

by  agreement  to  build  party-Tvall,  211 

by  recital  in  agreement  as  to  use  of  water,  459 

EVIDENCE. 

judicial  notice  of  tides  and  navigability  of  waters,  375 

presumption  of  negligence,  from  cause  of  injury,  133,  147 

by  permitting  horse  to  escape,  612 

presumption,  of  release  or  discharge  of  easement,  580 

as  to  immemorial  use  of  fishery,                                           '  499 

of  notice  of  dangerous  character  of  bees,  587 

of  grant  of  way,                                                       "  237 

as  to  machinery  continuing  safe,  146 

as  to  continuance  of  unlawful  diversion  of  water,  459 

as  to  amount  of  damage  done  by  each  of  several  animals,  594 

as  to  party-wall,  203 

burden  of  proof,  as  to  injury  by  use  of  adjoining  premises,  151 

of  negligence,  as  to  fires,  648 

in  case  of  injury  to  servant,  133 

competency  of  witnesses  as  to  quantity  of  water,  -         434 

as  to  right  to  use  waters  taken  by  another  for  irrigation,  449 

as  to  diversion  of  water,  459 

as  to  custom  of  leaving  gearing  of  mill  uncovered,  584 

of  scienter  as  to  character  of  animals,  593 

of  knowledge  as  to  sufiiciency  of  fence,  595 

EXCAVATION. 

liability  for  injury  to  person  falling  into,  26 


INDEX.  GOT 

by  permission  of  city  authorities,  liability  for  failure  to  guard,  54 

in  highway,  right  to  make,  109 

liability  for  making,  109 

when  constitutes  a  nuisance,  109 
in  or  near  high wa}',  liability  for,                                                         26,   116 

care  recjuired  of  traveler,  116 

liability  for  injury  to  adjoining  land  by,  38 

effect  as  to  soil  and  buildings  on  adjacent  premises,  190 

used  as  ornamental  fish  or  ice  pond;  offensive  odor  from,  430 

of  tunnel  under  island;  responsibility  for,  437 

EXCEPTIONS. 

by  statute  as  to  encroachments  on  highway's,  71 

EXECUTORS. 

liability  for  animals  procured  by  tenant,  623 

EXPERTS. 

statutes  requiring  consent  of  in  party-wall  matters,  216 

not  needed  as  to  danger  of  leaving  gearing  uncovered,  584 

EXPLOSION. 

of  steam  boiler,  liability  for,  153 

of  boiler  as  raising  presumption  of  negligence,  155 

of  electric  apparatus,  liability  for,  156 

EXTENSION. 

of  house,  easement  for,                    '  169 

EXTINGUISHMENT. 

of  easement,  •       570 

EXTRAVAGANCE. 

in  exercise  of  exclusive  right  to  use  of  water,  449 


FACTORIES. 

requirement  of  fire-escapes  upon,  661 

grant  of  water  for;  limit  of  use,  422 

FALLOW. 

setting  fire  to,  644 

FARMERS. 

competency  to  testify  as  to  quantity  of  water,  434 

FEDERAL  COURT. 

injunction  to  prevent  interference  with  obstructions  to  navigation,        468 

FEES. 

for  wharfage,  568 


'698  INDEX. 

TEN. 

region  of  England;  fame  of ,  5S9 

TENCE. 

poles  on  outer  edge  of  highway  as  nuisance,  10 
more  than  six  feel  high,                                                                    10,  12,  13 

common-law  right  to  build  high,  12 

constitutional  power  to  limit  height,  12,  13 

across  highway,  right  to  remove,  76 

liability  for  fall  of,  122 

across  land  as  obstruction  of  easement,  S42 

duty  to  keep  along  right  of  way,  845 

right  of  person  having  right  to  flowage  to  interfere  with,  258 

effect  of  on  right  of  common,  580 

sufficiency  of,  595 

necessity  of  fencing  ditch,  595 

partition;  agreement  to  dispense  with,  596 

must  not  be  source  of  danger  to  cattle,  596 

of  barb-wire,  597 

negligence  in  construction  of,  597 

right  to  enter  adjoining  land  to  restore,  648 

FER^   NATUR-ffJ. 

fish  are,  503 

what  animals  are,  58S 
liability  for  keeping  ammsils  ferce  nafurce  in  place  of  public  resort,        629 

FERRYBOAT. 

liability  for  loss  of  wagon  load,  138 

FERRY. 

franchise;  right  to  maintain,  479 

legislative  authority,  479 

right  by  prescription,  480 

subordinate  to  navigation,  480 

partition  of,  480 

grant  of  ferry  license,  480 

over  river  which  is  boundary,  481 

unlicensed  ferry  unlawful;  free  skiff  not  unlawful,  481 

a  public  highway,  481 

termini  of,  482 

as  appurtenant  to  land,  •<'.82 

injuries  from  defects  in,  482 

exists  only  in  connection  with  highway  or  public  place,  483 

exclusive  right  of,  483 

compensation  for  establishment  of  second  ferry;  revocation  of  license; 

validity  of  order  granting  license;  assignment  of  license,  485 

forfeiture  of  ferry  license,  487 

nonuser  of  ferry  franchise,  487 


INDEX.  090 

PERRYMAN. 

a  comuiou  carrier;  liability,  488 

FERTILIZER  FACTORY. 

as  nuisance,  1 1 

FILTRATION.     See  Percolation. 

FIRE. 

liability  for  spread  of,  135 

spontaneous  burning  of  hay-rick,  liability  for,  151 

burning  of  building  by  permitting  water  to  reach  lime  therein,  156 

destroying  building;  effect  of  on  right  to  use  alley,  576 

duty  imposed  upon  person  using,  640 

.    Statute  of  6  Anne,  chap.  3,  sec.  6,  640 

care  to  be  proportioned  to  risk,  042 

duty  to  follow  on  other  lands  to  extinguish,  646 

willfully  set,  liability  for,  645 

destruction  of  building  to  prevent  spread  of,  647 

burden  of  proof  of  negligence,  648 

rulings  in  New  York  and  Pennsylvania  courts  and  elsewhere,  649 

liability  for  fire  indirectly  extended,  654 
intervening  cause;  independent  wrongful  act  of  responsible  person; 

natural  consequences;  proximate  cause,  655 

result  of  one  of  two  causes,  659 
statutory  provisions  against  kindling  under  certain  circumstances.        660 

provision  as  to  fire-escapes  on  buildings,  661 

contributory  negligence  of  party  injured  by,  664 

not  bound  to  anticipate  negligence,  665 

creating  peril  or  neglecting  eCort  to  escape  loss,  666 

effect  of  changed  conditions  on  risk  of  buildings,  667 

consent  to  increase  of  danger,  668 

questions  for  jury,  668 
proximate  cause  of  loss  by  fire,                                                         643-660 

FIRE-ESCAPES. 

provisions  as  to  placing  upon  buildings,  660 

FISH. 

as  part  of  realty;  ownership,  354 

belong  to  the  whole  people,  508 

protection  of;  legislative  regulations,  529 

FISH   COMMISSIONS. 

establishment  of,  54I 

FISHERIES. 

regulation  of,  not  within  admiralty  jurisdiction;  exclusive  grant  of 

right  to  raise  oysters,  379 

fishing  privileges  a  property  right  of  state  citizenship,  492 


700  INDEX. 

right  to  fishing  does  not  pass  with  grant  of  bed  of  river  by  town,  494 
in  Great  Lakes;  control  of,  49& 
usage  as  affecting  rights  in,  496 
rights  common  to  all  or  vested  in  individuals,  498- 
right  by  prescription,  499 
right  to  fish,  in  pond,  257,  499 
in  mere  logging  stream,  519 
distinction  between  navigable  rivers  and  mere  logging  streams  as  af- 
fecting fishmg  and  hunting  rights,  519 
rights  of  owner  of  bed  of  stream,  382 
right  to  the  fish  in  drained  reservoir,  500 
carrying  on  business  with  machinery,  503 
restrictions  upon  fishing  rights,  503 
regulation  by  statute,  529,  530 
destruction  of  nets  illegally  used,  533 
oyster  fisheries,  536 
injury  to  by  negligent  navigation,  538 
protection  and  propagation  of  fish,  540 
no  right  to  draw  nets  upon  shore,  499 
privilege  of,  giving  right  of  access  and  egress,  243 
use  of  nets  and  appliances  fastened  to  soil;  esclusiveness  of  right,  517 

FISH   POND. 

made  in  stone  quarry,  540' 

FISH  WARDENS. 

jurisdiction  of,  535 

FISH-WAYS. 

compelling  dam  owner  to  maintain,  532- 

FLASH  BOARD. 

on  dam  as  showing  prescriptive  right,  582 

FLAT   BOATS. 

power  to  float  as  test  of  navigability  of  stream,  406 

FLATS. 

meaning  of,  378' 

power  to  fill  up,  381 
right  to  have  kept  open,                                                                    381,  382 

ownership  of,  383 

between  high  and  low  water  mark;  right  to  use,  384 

prohibiting  building  upon,  390' 

bordering  on  channel;  boundary  of,  395 

right  to  take  shell-fish  upon,  536 

FLOAT. 

fastened  to  shore;  liability  for  breaking  away  from  fastenings,  39& 


INDEX. 


701 


FLOATABLE   STREAMS. 

what  are;  riiibts  in,  402 

navigability  of,  3'^ 

right  to  remove  obstructions  from,  to  improve  navigation,  412 

rights  as  to  floatage  of  logs  upon,  S49 

TLOATING   COAL   YARD. 

duty  of  city  to,  331 


FLOODGATES. 

of  dam;  refusal  to  open  for  passage  of  mud, 

FLOODING. 

of  private  property;  liability  of  city  for. 


C46 


325 


as  ouster  of  possession  of  land,  432 

caused  by  bridge;  liability  for,  434 

by  insufficient  dam  or  reservoir.  439 

FLOODS. 

title  to  soil  washed  away  by,  400 

necessity  of  providing  for  in  making  dam,  43 1 

FLOW.    See  also  Streams;  Waters. 

of  water;  right  to  restore  by  removing  accretion,  401 

FLOWAGE. 

additional;  provision  for  not  inconsistent  with  grant  of  fee,  395 

prescriptive  right  to,  426 

FLUE. 

in  party- wall;  ownership  in,  806 

FLUME. 

easement  in  571 

right  by  prescription  to  use,  427 

Nevada  Act  as  to  diversion  of  water  by,                                   •                 445 

FLUSH   BOARDS. 

changing  height  of;  effect  on  claim  of  prescription,  262 

occasional  removal  of,  868 

FOOT  WAY. 

right  to  build  over,  846 

FOREST  LAWS. 

ancient  arbitrary;  remnant  of,  526 

not  American,  608 

FORFEITURE. 

of  oyster  bed  by  violation  of  law,  636 

FORGE. 

as  nuisance,  131 


T02  INDEX. 

FOUNTAINS. 

in  highway  as  nuisance,  33& 

FOWL. 

profit  d  prendi'e,  grant  of  to  shoot  wild-fowl,  181 

FOWLING.    See  also  Hunting. 

freedom  of,  under  Organic  Law  of  Vermont,  510 

FOXES. 

cruelty  to  by  hunting,  638 

FRACTIONAL  DIVISION. 

lines  of  as  boundary,  393 

FRANCHISE. 

right  to  operate  street  railway,  87 

of  ferry,  479 

grant  below  high -water  mark  more  than,  384 

reservation  of,  560 

FRAUDS. 

Statute  of,  in  respect  to  agreement  for  use  of  party-wall,  230 

FREEHOLD. 

movable,  of  riparian  proprietors,  40O 

right  to  watercourse  in  nature  of,  452 

FREIGHT. 

in  car;  destruction  of  by  fire,  652 

FRENCH  CUSTOMS. 

as  to  shooting  and  fishing  in  the  Northwest,  525 

FRESHETS. 

necessity  to  provide  for  in  making  dam,  431 

causing  injury  by  ice,  433 

FRESH  WATER  STREAMS.     See  Streams. 

FRIGHT  OF   HORSE. 

in  highway,  liability  for  injury  caused  by,  144 

proximate  cause  of  damages  resulting  from,  651 

FRUIT. 

upon  trees;  grant  of,  how  made,  355 


GALLERY. 

fall  of,  liability  of  landlord,  53 

GALLIPAGOS  ISLANDS. 

custom  as  to  whale  fisheries,  496 


INDEX.  703 

GAME. 

belongs  to  whole  people,  508 

risrht  to  kill  upon  navigable  water,  508 

killed  on  land  of  another;  ownership  nf,  516,  51^6 

shooting  from  highway  on  private  laud,  528 

statutes  for  preservation  of,  503,  541 

GAME  LAWS. 

of  England:  cruelty  of,  503 

construction  and  application  of,  -528 

GARDEN. 

liability  for  attracting  crowd  into,  144 

GAS. 

right  to  lay  pipes  in  streets,  98 

corruption  of  water  in  soil  by,  275 

liability  for  admitting  into  building  where  it  ignites,  642 

GAS  WORKS. 

percolations  polluting  wells,  private  remedy  for,  80 

GATES. 

on  right  of  way;  right  to  erect  or  remove,.  176,  245 

in  main  ditch  for  passage  of  water,  450 

GEARING. 

liability  for  leaving  uncovered,  584 

custom  as  to  leaving  uncovered,  584 

GEOLOGY. 

is  a  progressive  science,  286 

GLANDERS. 

as  unsoundess  of  horse,  635 

GOOSE. 

cruelty  by  turpentining  and  burning,  639 

GOVERNMENT. 

title  of  to  seashore  and  banks  and  beds  of  tidal  streams,  377 

GRAND  POND. 

regulation  as  to  fishing  in,  535 

GRAND  RIVER. 

ownership  of  bed,  514 

prohibiting  nets  in,  535 

GRANT. 

of  franchise,  construction  of,  88 

legislative,  operation  of  statute,  561 


704  INDEX. 

express,  159 

implied,  163 
implied  in  case  of  party-wall,                                                            208,  223 

of  trees,  corn,  fruit,  etc.,  how  made,  355 

bounded  on  navigable  rivers;  extent  of,  387 

rights  necessary  to  enjoyment  of,  418 

of  water-right;  what  passes  as  appurtenant  to,  418 

of  water;  limitation  of  quantity,  422 

of  exclusive  fishery,  500 

of  right  to  create  warren,  527 

GRANTEE.     See  also  Pojchaser. 

liability  on  covenant  as  to  water-right,  450 

of  water  privileges;  right  to  continue  obstructions,  462 

GRASS. 

liability  for  setting  fire  to,  G45 

failure  to  keep  burned  near  railroad,  665 

GRAVEL. 

below  high-water  mark;  ownership  of,  387 

prohibiting  the  taking  of  from  beach,  390 

bar  of  in  river  bed;  ownership  of,  387 

GREAT   LAKES. 

control  of  fisheries  in,  495 

navigability  and  freedom  of,  511 

GREAT  PONDS.     See  also  Ponds. 

right  to  appropriate  waters  of,  454 

protection  of  licensee's  right  to  use  waters  of,  457 

control  of  fisheries  in,  495 

Colonial  Act  as  to  fish  and  fowl  of,  509 

GREEN-HOUSE. 

damage  by  freezing  of  water  pipes;  liability  of  city,  334 

GREENLAND. 

claim  of  usage  in  whale  fishery,  497 

GRIST-MILL. 

use  of  water  for;  restriction  of  use,  422,  571 

GROSS. 

right  of  way  in,  175,  176 

GROUSE. 

killing  against  rights  of  warren,  527 

GUARDS. 

against  fire;  neglect  of,  665 


INDEX.  7U5 

GULCH. 

navigability  of  after  being  cleared  and  enlarged,  407 

GUTTERS.     See  Dr^iiNS. 


HACK   DRIVER. 

negligence  of  in  standing  by  door  of  hack,  618 

HALE. 

Lord,  treatise  of,  620 

HARBOR. 

improvement  by  Act  of  Congress;  right  of  United  States  in,  380 

establishment  of  line  by  legislative  authority,  561,  563 

effect  of  on  right  of  rijiarian  owner,  379 

HARBORER. 

of  dog;  liability  of,  621 

HARLEM. 

title  of  freeholders  to  waters  of,  385 

HARPOON. 

striking  whale  with  as  affecting  title,  497 

HATCH   COVERS. 

presumptive  negligence  in  handling  without  warning  to  persons  be- 
neath, 156 

HATCHWAY. 

failure  to  guard  or  give  notice  of,  22 

fall  of  blind  man  into,  135 

fall  into,  of  gas  fitter  sent  to  building,  150 

HAY. 

growth  of  injured  by  freshets;  liability  for  damage,  433 

destruction  of  by  fire  set  by  steam  thresher,  666 

HAY   RICK. 

liability  for  injury  from  spontaneous  burning,  151 

HAY  STACKS. 

negligence  in  placing  near  railroad,  665 

HEALTH. 

injury  by  permitting  water  to  stagnate,  304 

authorities;  liability  for  negligence,  335 

HEDGE. 

necessity  of,  595 

45 


706  INDEX. 

HENNEPIN   ISLAND. 

injury  caused  by  tunnel  under,  436 

HENS. 

tendency  of  dog  to  kill,  626 

HERBAGE. 

riglit  of  owner  of  soil  to,  258 

HEREDITAMENT.    See  Incorporeal  Hereditament. 

HIDDEN   DANGERS. 

failure  to  disclose,  150 

HIDE. 

light  to  construct  for  shooting  wildfowl,  504 

HIGH-WATER   MARK. 

what  is,  378 
as  boundary  of  private  ownership,                                                   380,  384 

as  boundary  of  seashore,  393 

HIGHWAY. 

designated  upon  plat  but  not  accepted,  98 

created  by  sale  of  house  fronting  on,  1 84 

private  easement  in,  235 

of  lot  owners,  extent  of,  81 

private  right  of  action  for  injury  to,  78 

discontinuance  of  portion  as  affecting  right  of  way  to,  244 

use  which  would  be  a  nuisance  except  for  grant  or  prescription,  35 

public  nuisance  on,  72 

by  railroad  across  street,  72 

railroad  grant  of  privilege  in,  87 

use  of  steam  for  motive  power  in,  72 

electric  motors  for  railways  in,  94 

laying  of  street  railroad  in,  rights  of  abutting  owners,  88,  89 

ownership  of  fee  of  street,  91,  93 
right  of  abutting  owners  to  compensation  for  street  railways  in,        90-92 

ordinary  use  by  railroad,  72 

teamsters  making  unlawful  use  of,  74 

using  for  a  hack  stand,  74,  248 

as  place  for  keeping  carriages  or  stable  yard,  74,  249 

attracting  crowds  in,  74 

use  by  hucksters  as  a  market  place,  74 

sale  of  goods  in,  249 

use  for  pleasure,  100 

sliding  in,  75 

drains,  electric,  gas  and  water  pipes  in,  98 

private  sewerage  in,  1 23 
obstructions  in,                                                                                   247,  473 


INDEX.  TOT 

as  nuisance,  C9 

remedy  for,  76 
private  right  of  action  for,                                                  469,  471,  473 

who  entitled  to  recover  for,  126 

Legislative  Act  legalizing,  99 

authority  to  permit,  99 

reasonable  use  of,  71 

placing  materials  in,  7 1 

use  for  pleasure,  1 00 

refusal  to  move  at  command  of  policeman,  248 

by  cars  before  residences,  74 

by  conveying  goods  to  and  from  store,  248 

use  by  wagoner  for  loading  and  unloading  before  "warehouse,  248 

by  hewing  and  sawing  logs,  249 

by  building  materials,  249,  250 

temporary  use  for  building  purposes,  99,   lOO 

by  skids  across  sidewalk,  251 

by  telegraph  and  telephone  poles  or  wires,  95,  251 

by  throwing  wood  or  stones  into,  25  1 

by  electric  or  steam  railway,  251 

right  of  traveler  to  assume  safety  of,  114 

excessive  speed  of  travelers,  127 

driving  blind  horse  on  dark  night,  127 

traveler's  knowledge  of  danger,  128 

violation  of  ordinance  by  driving  on  sidewalk,  130 

right  to  go  on  adjacent  lands,  when  impassable,  124 

defects  in,  liability  for,  68 

omission  of  occupant  to  repair,  69 

liability  of  town  or  city  for,  339,  341 

liability  for  accidents  upon,  144,  145 

duty  of  railroad  company  as  to  condition,  252 

necessity  of  barriers  along  dangerous  places,  116,  314 

proximate  cause  of  injuries  in,  365,  368 

encroaciiments  upon,  69 

authority  to  permit,  99 

owner  of  propertj^  on  street  must  not  create  nuisance,  102 

insecure  buildings  adjoining  highway,  103 

falling  of  fence  or  limbs  of  trees  in,  112 

bridge  across  street  for  private  use  as  nuis;ince,  264 

projection  of  cornice  over,  264 

petition  for  damages  for  taking  not  substitute  for  action  at  law,  267 

damages  occasioned  by,  267 

for  expense  of  wall  to  house,  267 

effect  of  change  of  grade  on  surface  waters,  305 

damage  to  private  property  by  open  ditch,  322 

percolation  of  water  from  gutters  and  catch  basins  in,  350 

rights  as  to  w^atercourses  within;  in  repairing,  382 


708  INDEX 

between  high  and  low  water  mark,  74,  383 
obstruction  of  as  nuisance,  383 
laying  out  in  front  of  uplands;  effect  on  riparian  rights,  395 
navigable  stream  declared  public  by  statute,  .  257 
floatable  stream  as,  402 
canal  as  navigable  water,  370 
killing  birds  or  beasts  in,  529 
liability  for  cattle  turned  into,  594 
removal  of  trespassing  animals  to,  599 
leaving  horse  at  large  in,  607 
leading  bull  or  cow  through,  608 
leaving  horse  unhitched  in,  611 
negligence  of  hack-driver  in,  612 
annoyance  to  citizens  in,  by  dogs,  627 
walking  fast  and  talking  loud  as  contributory  negligence  in  case  of  in- 
jury by  dog,  631 

HOGS. 

prohibited  from  running  at  large;  trespass  by,  599 

liability  for  injuries  by,  while  running  at  large,  603 

HOLE.     See  CoAi.-HoLE;  Excavation, 

HOMESTEAD  CLAIMANT. 

rights  in  creek,  subject  to  prior  appropriation,  445 

as  against  subsequent  proprietor,  446 

HORSE. 

frightened  in  highway;  injury  caused  by  in  highway,  144 

proximate  cause  of  injury  by,  651 

unruly,  liability  for  killing  traveler,  144 

liability  for  injury  to  on  ferry,  490 

injury  to  by  bees;  liability  for,  587 

escaping  from  hired  pasture,  594 

damages  to  field  by,  594 

negligence  in  leaving  at  large,  607 

permitting  to  go  at  large  in  public  highway,  607 

liability  for  killing  colt,  608 

care  required  of  stallion,  609 

leaving  horse  exposed  in  public  place,  610 

leaving  unhitched  in  street,  611 

cruelty  by  overburdening  and  misusing,  639 

scalded  by  steam  from  breaking  of  bridge,  656 

HORSE   RAILWAYS.     See  Street  Railways. 

HOSPITALS. 

requirement  of  fire-escapes  upon,  661 


INDEX. 


709 


HOTEL. 

defect  in;  liability  of  owner  during  lease,  51 

kitchen  of,  making  wine  cellar  too  warm,  injunction  against,  153 

requirement  of  "fire  escapes  upon,  661 

HOUSE. 

easement  of  extension,  169 

materials  of,  how  granted,  355 

HUDSON   RIVER. 

title  of  State  to  in  trust,  386 

HUNDREDS. 

liabilities  of,  338.341 

HUNTING. 

privilege  of,  giving  right  of  access  and  egress,  243 

restrictions  upon  rights  of,  503 

distinction  between  navigable  rivers  and  mere  logging  streams  as  af- 
fecting rights  of,  519 
in  park;  liability  for,                                                                                    528 

HUNTINGTON    BAY. 

title  to  waters  of,  385 

HUSBANDRY. 

setting  fires  for  purposes  of,  645 


ICE. 

fall  from  roof,  liability  for,  8,  47,  105,  132 

no  proof  of  negligence  necessary,  14 

ownership  of,  belongs  to  soil,  516 

within  boundaries  of  railroad,  right  to,  158 

right  to  cut  and  take  from  river,  260 

on  right  of  way  belonging  to  owner  of  soil,  265 

on  floatable  fresh-water  stream;  property  in,  413 
accumulated  by  imperfect  construction  of  dam;  liability  for  injury 

caused  by,  433 

dykes  to  prevent  towing  cakes  of  across  premises,  385 

ICE  POND. 

made  in  stone  quarry,  540 
ICICLE. 

frightening  of  horse  by,  611 

IDAHO. 

law  of  as  to  appropriation  of  water,  448 


710  INDEX. 

IDENTITY. 

of  use  in  prescription,  862 

ILL   FAME. 

house  of,  indicating  by  light  in  front  of,  15 

IMPLIED   ASSUMPSIT.     See  Assumpsit. 

IMPOUNDING. 

of  domestic  animals;  right  to,  600 

INCIDENTAL   DAMAGE. 

liability  for,  266,  267 

INCHOATE   GLANDERS. 

as  unsoundness  of  horse,  635 

INCONVENIENCE.     See  Nuisance. 

INCORPOREAL   HEREDITAMENTS. 

origin  of,  178 

presumption  of  title  by  enjoyment  of,  S36 

grant  below  high-water  mark  more  than,  384 

in  respect  to  wharf  rights,  560 

INDICTMENT. 

for  obstruction  to  flow  of  stream,  468 

INEVITABLE   ACCIDENT. 

responsibility  for,  546 

INFORMATION. 

by  attorney-general  to  prevent  diversion  of  water,  458 

for  obstruction  to  flow  of  stream,  468 

INHABITANTS. 

of  town;  right  to  private  way,  235 

INJUNCTION. 

to  restrain  nuisance  in  streets,  76 

to  restrain  street  railroad,  87,  92 

to  restrain  telegraph  and  telephone  poles  in  streets,  95 

against  hotel  kitchen  making  adjoining  wine  cellar  too  warm,  153 

to  restrain  dam,  436 

against  dam  for  irrigating  purposes,  446 

to  prevent  pollution  of  water,  293. 

against  diversion  of  water,  455 

for  sale  of  use  at  a  distance,  450 

to  restrain  nuisance,  476 

INJURY.    See  also  Damages;  Master;  Negligence. 

from  unusual  cause  not  in  itself  a  nuisance,  138 

from  dye  in  cloth,  136 


INDEX. 


711 


by  slipping  on  stairway, 

to  passenger  by  accident, 

caused  by  frightened  horse, 

accidental  or  negligent  in  constructing,  elevating  or  repairing 

wall, 
proximate  cause  of, 
division  of  damages  in  case  of, 
to  longshoremen, 
to  vessel, 

to  goods  carried  as  freight, 
to  person, 

to  others  as  necessary  effect  of  work  on  one's  own  land, 
special  or  peculiar  in  case  of  nuisance;  what  is, 
to  children.     See  Children. 

INLAND   LAKES. 

freedom  of  for  fishing  and  fowling, 

INSURANCE. 

on  canal  boat;  proximate  cause  of  loss  by  fire, 

INSURERS. 

boom  companies  are  not, 
owner  of  dogs  is  not, 

INTENT. 

to  cause  injury, 

not  always  necessary  to  create  liability, 

•when  law  will  supply, 

sometimes  essential  to  be  shown, 

to  violate  law  as  to  planting  oysters, 

as  determining  construction  of  deed, 

to  abandon  easement, 

INTERMINGLING. 

of  logs, 

INTERVENING  CAUSE.    See  Proximate  Cattse. 


139 
138.  139 
144 
party- 

231 
365 
369 
369 
369 
369 
370 
436 
472 


513 

656 

557 
622 


11 

14 

14,  15 

15 

537 

572 

577 

558 


INTRUDER. 

liability  for  injury, 

duty  toward;  intent  to  injure, 

INVITATION. 

by  failure  to  prohibit  passage  between  houses, 
to  go  upon  dangerous  premises, 

IOWA. 

rule  as  to  ownership  of  navigable  rivers, 

IRRIGATION. 

diverting  water  from  stream  for, 


16.17 
23 

23 
116 

386 

440 


712  INDEX. 

appropriation  of  water  for,  in  Pacific  States,  444 

right  to  appropriate  water  for  on  public  lands,  44S 

ISLAND. 

title  to,  38a 

resulting  from  accretion;  ownership  of,  397 

between  two  channels  of  river;  title  to  accretion  upon,  398 

formed  on  submerged  land,  400 

injury  caused  by  tunnel  under,  436 


JOINT   DEBTORS. 

liability  for  diversion  of  water  jointly,  458 

JOINT   OWNER. 

of  animal;  liability  for  injury  by,  623 

JUDGMENT. 

defining  waste  water  of  stream,  450 

restraining  interference  with  dam;  effect  of  as  to  prior  appropriation 

above,  451 

JUDICIAL    EXPERTS. 

requiring  consent  of  in  party- wall  matters,  216 

JUDICIAL   NOTICE. 

of  ebb  and  flow  of  tides  and  navigability  of  waters,  STS 

JURISDICTION. 

prerogative  right  of,  in  regard  to  nuisance  in  rivers,  502 


KENTUCKY. 

rights  of  riparian  proprietor  on  navigable  stream  in,  388 

KNOWLEDGE.    See  Notice. 


LACHES. 

to  defeat  injunction  against  diversion  of  water,  458 

LAKE. 

as  distinguished  from  stream,  358 

title  to  shore,  8 ''8 

as  boundary,  393 

private;  ownership  of,     •  408 

right  of  riparian  proprietor  to  use  water  of,  411 


INDEX.  713 

right  of  action  of  boat  owner  for  obstruction  to,  473 

control  of  fisheries  in  Great  Lakes,  495 

right  of  fishing  in,  495 

partition  of,  521 

right  to  lower  outlet  and  draw  down,  547 

LAKE    CHAMPLAIN. 

prohibiting  net  fishing  in,  535 

LAMENESS. 

as  unsoundness  of  horse,  635 

LAMP. 

suspended  on  public  highwaj',  duty  to  keep  in  safe  condition,  38 

LAND. 

right  to  support  by  adjoining  land,  37 

what  included  in  ownership  of,  354 

LANDINGS. 

right  to  make,  358,559 

when  not  a  wharf,  390 

dut/of  ferrymen  to  make  safe,  488 

dedication  does  not  apply  to,  559 

public  and  private,  502 

LANDLORD. 

liability  for  unguarded  cellar-way  of  leased  premises,  4 1 

liabihty  for  nuisance  on  leased  premises,  44 

effect  of  redemise,  46 

liability  for  lack  of  railing  along  unsafe  embankment,  47 
liability  for  defectively  covered  coal-hole,                                          48,  52 

liability  for  dangerous  defect  in  pier,  48 

liability  for  defective  wharf,  48 

liability  for  fall  of  rented  building,  51 

duty  to  keep  sidewalk  safe,  52 

liability  for  fall  of  gallery  in  leased  building,  53 
right  to  enter  as  affecting  liability  for  nuisance,                                 ,         58 

necessity  of  notice  to,  58 

liability  for  nuisance  occuring  during  term  of  lease,  61 
liability  for  defective  covering  of  aperture  in  sidewalk,     48,  53,  111,  112 

liability  for  dangerous  premises  in  good  repair  when  leased,  113 

liability  for  lack  of  fire-escapes  on  building,  663 

LANDOWNER. 

limit  of  right,  to  use  land,  7 

to  cultivate,  0 

LANE. 

grant  of  use  of,  242 

obstruction  by  fence,  342 


714  INDEX. 

LARCENY. 

of  animal  killed  on  land  of  another,  625 

liATERAL  SUPPORT. 

right  to,  37 

does  not  extend  to  buildings,  38 

reciprocal  easement  of,  190 

LAWFUL  ACT. 

on  one's  own  premises;   liability  for,  436,  439 

LEASES.    See  also  Landlord;  Tenant. 

right  to  flow  lands  as  grant  of  easement,  421 

LEDGE. 

of  rock;  right  to  remove  so  as  to  affect  flow  of  stream,  462 

LEGISLATIVE  GRANT. 

state  statute  operating  as,  561 

LEGISLATURE. 

authority,  limit  of,  exceeding,  34,  35 

authority  of,  to  build  bridge,  463 

to  obstruct  stream,  389 

power  to  regulate  rights  of  fishing,  495 

regulation  by,  of  sporting  and  fishing,  629 

LESSEE.    See  Tenant. 

LEVEES. 

right  to  build  in  Iowa  below  high-water  mark,  386 

right  of  City  of  New  Orleans  to  build,  387 

right  of  State  to  build  or  compel  riparian  owners  to  maintain,  391 

libality  for  injury  for  diversion  of  water  caused  by,  435 

to  protect  bank  from  overflow,  435 

liability  for  overflow  caused  by,  467 

LEX  REI  SIT^. 

as  to  servitudes  and  easements,  263 


LIBEL. 

for  destroying  seine. 


640 


LIBERTY  POLE. 

liability  for  injury  by  fall  of,  142 

LICENSE. 

condition  on  which  granted,  109 

by  parol,  201,421,500 
when  revocable.                                                               181,  201,  385,  421 

of  right  to  shoot  wild-fowl,  181 

to  use  pathway,  181 


INDEX.  715 

to  use  foot-path  implied  from  upo,  236 

to  establish  right  of  way,  238 

executed,  as  creating  easement,  182 

proof  of ,  to  defeat  easement,  263 

to  use  party-wall,  202 

to  build  out  wharf;  irrevocable;  when  executed,  385 

to  use  waters  of  great  pond,  418 

by  parol,  for  use  of  river,  stream  or  pond,  421 

to  establish  mill  and  flow  lands;  right  to  revoke,  421 

to  build  bridge,  withdrawn,  466 

alteration  of  bridge  by  Congress,  466 

by  parol,  to  fish,  500 

license  or  tax  upon  dogs,  628 

XICENSEE. 

duty  toward,  as  to  premises,  20,  25 

liability  for  injury  to  by  dangerous  machinery,  584 

liabilitv  for  injury  to,  150 
liability  of  for  permitting  water  to  reach  stored  lime  and  burn  building,     156 

from  State;  protection  of  right  to  use  waters  of  great  pond,  457 

LICENSOR. 

right  of  to  abate  nuisance,  470 

LIGHT. 

from  street;  easement  of  abutting  owner,  84,  180 

negligence  as  aflltecting  easement  of,  253 

effect  on  easement  of  by  filling  windows,  579 

LIGHT-HOUSE. 

liability  of  United  States  to  pay  rent  for  land  used  for,  o80 

LIGHTNING. 

liability  for  injuries  caused  by,  106 

LIME. 

liability  for  permitting  water  to  reach  and  burn  building,  156 

offense  of  putting  in  waters  where  fish  are,  540 

LIMITATION. 

of  easement  by  prescription,  176 

of  actions  for  damages  by  erection  of  mill  dam,  426 

LITTORAL  RIGHTS. 

what  are,  358 

LIVERY   STABLE. 

as  nuisance,  131 

LOBSTERS. 

lawful  time  for  planting  and  gathering,  540 


•16 


INDEX. 


LOCOMOTIVE. 

running  over  common  path  ■without  warnini^,  20 

right  to  divert  waters  of  stream  for,  457 
liability  for  tires  set  by  sparks  from,                                                643,  646 

destruction  of  cord- wood  by  sparks  from,  666 

destruction  of  hay  stack  by  sparks  from,  66& 

LOGGING  STREAMS. 

as  distinguished  from  navigable  rivers  in  respect  to  hunting  and  fish- 
ing rights,  519- 

LOGS. 

power  to  float  as  test  of  navigability,  406- 

liability  for  incumbering  mill-pond  with,  413 
right  to  raft  and  float  in  streams,                                                      413,  549 

duty  of  owner  of  dam  to  make  passage  for,  550^ 

sufficiency  of  sluiceways,  551 

boom  companies;  duties  and  liabilities  of,  556 

compensation  for  driving,  557 

intermingling  and  confusion  of,  558 

prohibiting  burning  of  during  drought  GBO 

LOG-WAY. 

right  to  construct  on  bank  of  river,                                                *  556- 

LONGSHOREMAN. 

injury  by  falling  on  deck;  division  of  damages,  SBS- 

equal  division  of  damages  to,  in  admiralty,  368 

LOSS.     See  also  Damages. 

division  of  in  case  of  admiralty,  868- 

neglecting  effort  to  escape,  666- 

LOW- WATER  MARK. 

what  is,  378- 
as  boundary  of  private  ownership,                                                  879, 384 

LUMBER. 

rafts  of  as  test  of  navigability  of  stream,  406- 

MACHINERY. 

defective;  liability  for  injury  to  person  who  enters  without  invitation,     24 

unguarded;  liability  for  injury  to  child  by,                         .  29- 

care  required  of  owners  of,  583 

presumption  as  to  continuing  safe,  146 

use  of  in  dangerous  condition  as  negligence,  668 

vibration  caused  by,  as  a  nuisance,  168 

class  of,  as  test  of  quantity  of  water  to  be  taken,  421$ 


INDEX.  71  ( 

MACKEREL. 

shoal  of  iu  place  with  small  opening;  right  to,  499 

MAGAZINE. 

of  powder:  liability  for  explosion  of,  650 

MALEVOLENCE.     See  Iktent. 

MALICIOUSNESS. 

as  to  running  vessel  upon  net,  538 

MANUFACTURING. 

use  of  water  from  stream  for,  410,  441 

MANUFACTURING   CORPORATION. 

duty  to  make  lish-way  past  dam,  533 

MAP. 

designating  street,  conveyance  of  lots  with  reference  to,  162 

MARE. 

warrant)'  of,  634 

MARITIME. 

meaning  of  word,  370 

MARSH.' 

division  of  after  draining;  rights  of  purchasers,  187 

as  boundary  of  lands,  393 

MARYLAND. 

compact  with  Virginia,  561 

MASSACHUSETTS  BAY. 

Colony  of,  laws  as  to  fish  and  game,  509 

MASTER. 

liability  for  animal  kept  by  servant,  621 

chargeable  with  servant's  knowleiige,  624 

liability  for  injury  by  loose  beam  left  on  bridge  over  trench,  2 1 

liability  for  servant's  neglect,  35 

duty  of  as  to  dangers  in  coal  mine;  burden  of  proof  as  to  negligence 

in  case  of  accident,  133 

injury  to  track  walker  by  coal  falling  from  tender,  137 

injury  to  brakeman  from  telegraph  wire,  140 

liability  for  leaving  wheel  uncovered,  142 

liability  for  negligence  of  agent  iu  performance  of  work,  232 

MATERIALS. 

of  house,  how  granted,  355 

right  to  place  in  highway,  71,  249,  250 

MAXIMS. 

aqua  currit  et  debet  currere  ut  solehat,  409,  544 


718  INDEX. 

as  to  use  of  property  so  as  not  to  incommode  neighbor,  25- 

causa  pro.vima  non  remota  spectatur,  658 

ressante  ratione  cessat  ipsa  lex,  28& 

conceditur  et  id  sine  quo  res  ipsa  haheri  non  debit,  418 

mjus  est  solum  ejus  est  usque  ad  ccelum,  354 
damnum  absque  injuiHa, 

72,  147,  196,267,  280,  298,305,  308,  382,  442,463,  559 

necessitas  indueit  privilegium  quoad  jura  pricata,  647' 

nullum  tempus  occurrit  regi,  71 
respondeat  superior,                                                                             37,  335- 

sah(s  populi  est  suprema  lex,  321 
sic  utere  iuo  ut  alienum  non  Imlas, 

7,  32,  148,  195,  344,  361,  438,  532,  546 

MEANDERED    STREAM. 

as  boundary  of  land,  395 

MERGER. 

of  private  injury,  75- 

of  easement  in  union  of  titles,  573 

MESSUAGE. 

grant  of,  including  conduit,  418 

MEXICAN  GRANT. 

boundary  of  patent  issued  upon,  388 

MILL. 

grant  of  with  water-rights  appurtenant,  419 

grant  of  site,  what  passes  as  appurtenant,  418 
right  to  use  waters  of  floatable  streams  for,                                     413,  414 

reasonable  use  of  waters  for,  545 

damage  to  owners  of,  by  taking  water  under  public  authoiity,  268- 

right  of  owners  of,  under  grant  to  have  waters  sent  down,  424 

upper  and  lower  owners;  rights  of;  negligence,  544 

MILL-POND. 

subsidence  of;  title  to  soil  laid  bare  398 

right  to  incumber  with  logs,  413 

MINE. 

injury  by,  to  stream  of  water,  155 

dam  to  protect  from  casting  water  upon  lower  mine,  258 

MINING. 

use  of  waters  for,  444 

MINNESOTA. 

title  to  navigable  streams  in,  388 

MISCHIEF.    See  Injury. 


INDEX.  71l> 

MISCHIEVOUS   ACTS.     See  also  Acts. 

of  third  persous;  liability  for,  3G8 

MISDEMEANOR. 

in  burning  wooils,  660,  661 

MISJOINDER. 

of  causes  of  action  in  trespass,  459 

MISSISSIPPI    RIVER. 

as  navigable  river,  372 

title  to  shore  in  Iowa,  386 

MISSOURI. 

rights  of  riparian  owners  on  Mississippi  River  in,  389 

MISTAKE. 

in  entering  premises  as  contributory  negligence,  631 

MOHAWK   RIVER. 

title  of  in  State,  385 

MONKEY. 

liability  for  injury  by,  630 

MONOPOLY. 

of  animals,  527 

MOORING. 

to  wharves;  right  of,  568 

MORT  D'ANCESTOR. 

limitation  of -writs  of,  177 

MORTGAGE. 

effect  of  discharge  or  redemption  on  easement,  573 

MOTIVE.     See  Intekt. 

MOTIVE   POWER.    See  Street  Railroads. 

MOVABLE  FREEHOLDS. 

of  riparian  proprietors,  400 

MUD. 

refusal  to  open  flood  gates  of  dam  for,  546 

MUD  FLATS.     See  also  Flats. 

use  of  between  high  and  low  water  mark,  384 

MULE. 

escaping  from  hired  pasture,  594 

liability  for  viciousness  of,  594 


720  INDEX. 

MUNICIPAL   AUTHORITIES. 

injuuction  to  prevent  from  interfering  with  obstructions  to  navigation,  468 

MUNICIPAL  CORPORATIONS. 

duty  not  to  cast  filth  of  sewers  upon  lands  of  others,  289 
duty  in  controlling  surface  and  percolating  water,  and   in  supplying 

water  artificially,  304 

liability  for  negligence,  in  adopting  plan  of  improvement,  310 

or  in  execution  of  plan  or  in  care  of  gutters  and  drains,  310 

liable  for  neglect  of  absolute  and  private  duties,  311 
liability  for  selecting  incompetent  agent,                                         313,  315 

liability  for  negligence  of  officers  of,  333 

rule  of  liability  in  New  England,  338 

limited  liability  of  incorporated  town  or  city,  35 1 

liability  for  nuisance  or  invasion  of  rights,  321 

under  what  circumstances  liable  for  damage  by  waters,  325 
control  over  shores  and  banks  of  navigable  waters;  duty  of  care   of 

structures  thereon,  390 

liability  for  failure  to  enforce  ordinance,  392 

use  of  waters  to  supply,  451 

MUNICIPAL  ORDINANCES. 

as  to  sale  of  impounded  animals,  601 

as  to  strays,  602 

MUSSEL  BED. 

elevation  of  not  island,  383 

MUSSELS. 

right  to  dredge  for,  537 


NATURAL  CHANNEL. 

what  is,  355 

NATURAL  EASEMENTS. 

what  are,  355 

not  lost  by  merger,  573 

NATURAL  OYSTER  BED. 

what  is,  537 

NATURAL  RIGHTS. 

limitation  of,  7,  8 

NATURAL  WATERCOURSE. 

what  is,  357 

NAVIGABLE  WATERS. 

test  of  navigability,  406,  407,  408 


INDEX.  7L*  1 

test  of  public  cbaracter  of  stream,  416 

admiralty  jurisdiction  over;  what  are,  368 

tidal  streams,  373 

non-tidal  navigable  waters,  375 

title  in  shore,  banks  and  bods  of,  377 

control  over  shores  and  banks  of,  390 

care  of  structures  thereon,  390 

title  to  lands  conveyed  along  water  front,  393 

alluvion,  accretion  and  dereliction,  396 

floatable  and  private  streams,                                           ,  402 

right  to  use  without  compensation  to  riparian  owners,  386 

Ohio  River  included  in,  466 

right  to  kill  game  or  take  fish  upon,  508 

NAVIGATION. 

unlawful  obstruction  to,  859 

not  legalized  by  time,  460 

over  land  between  high  and  low  water  mark;  right  to,  388 

interference  with  by  bridge,  etc.,  463 

negligent  injury  to  fish  by,  537 

right  of  United  States  to  use  soil  under  water  in  aid  of,  661 

NECESSARY  EASEMENTS. 

not  lost  by  merger,  573 

NECESSITAS  INDUCIT    PRIVILEGIUM    QUOAD    JURA 

PRIVATA.  647 

NECESSITY. 

easement  of,  159 

right  of  way  by,  166 
degree  of ,                                                                                              166-176 

for  killing  dog,  688 

NEGATIVE  EASEMENT. 

what  is,  158 

NEGLIGENCE. 

defined,  361 

slight,  361 

ordinary,  368 

gross,  368 
contributory,                                                                  363,  558,  630,  664 

comparative,  rule  of  in  Illinois  and  Georgia,  631 

in  admiralty  jurisdiction,  868 

anticipation  of,  665 

proximate  cause;   rule  as  to,  863 

presumption  of  from  cause  of  injury,  147 

burden  of  proof  of,  as  to  fires,  648 
question  for  jury,                                                                                539,  668 
4G 


722  INDEX. 

of  third  person  as  defense,  660 

creating  peril  or  neglecting  effort  to  escape  loss,  666 

changed  conditions,  667 

consent  to  increase  the  danger,  668 

as  to  condition  of  premises,  16 

as  to  trap-door  or  hatchway  unguarded,                '  22 

in  leaving  cellar-way  unprotected,  41 

by  throwing  heavy  bales  into  gangway  in  warehouse,  22 

by  owner  of  dangerous  premises,  24 

as  to  defective  machine  on  premises,  24 

in  use  of  machinery  in  dangerous  condition,  668 

by  moving  in  dark  room,  24,  25 
of  stranger  in  entering  manufacturing  establishment  to  unload  articles,    24 

as  to  excavation,  26,  53 

as  to  unsafe  walls,  28 

in  permitting  children  to  go  upon  street,  28 

of  duties  transferred  to  others,  35 

causing  injury  to  traveler,  116 

See  also  Highways. 

proof  of,  to  make  injury  from  unusual  cause  a  nuisance,  133 

as  to  buildings,  148 

injury  by,  in  constructing,  elevating  or  repairing  party-wall,  231 

joint  liability  for  acts  of  agents  in  removing  party-wall,  233 
in  adopting  plan  or  in  its  execution,  or  in  care  of  gutters  and  drains,     310 

in  the  exercise  of  exclusive  right  to  water,  449 

in  failure  to  build  bridge  in  manner  prescribed  by  law,  467 

in  navigation;  injury  to  fisheries  by,  538 

as  to  rights  of  upper  and  lower  mill  owners,  544 
as  to  floatage  of  logs,                                                                         549,  556 

in  driving  logs;  contributory,  558 

effect  of  on  easement,  580 

in  permitting  horse  to  do  injury,  607 

in  leaving  horse  at  large  on  highway,  607 

contributory,  in  case  of  injury  from  animals,  630 
in  respect  to  fires,                                                                     641,  648,  668 

contributory,  of  party  injured  by  fire,  664 

in  building,  in  violation  of  ordinance,  656 

NETHERLANDS. 

acquiring  jurisdiction  of  rivers  from,  530 

NETS. 

right  to  draw  upon  shore,  499 

right  to  use  in  sea,  499 

prohibition  of  for  taking  fish,  531 

illegally  used;  destruction  of,  533 

injury  to  by  vessel.  538 

damages  for  partial  destruction  of,  539 


INDEX.  723 

NEVADA. 

law  as  to  appropriation  of  water  in  445 

NEWARK. 

rights  of  City  of  in  Passaic  River,  453 

NEW  JERSEY.  * 

grant  from  Charles  II.,  494 

right  of  fisheries  in,  494 

public  right  in  fisheries,  494 

NEW  YORK. 

title  of  freeholders  to  waters  of  Harlem,  385 

NON-TIDAL  RIVERS.    See  also  Stiieams. 

as  navigable  waters,  375 

NONUSER. 

of  water-power  does  not  impair  title,  425 
effect  of  upon  easement,                                                                     576,  579 

NORTHWEST. 

French  customs  as  to  shooting  and  fishing  in,  625 

NOTICE. 

of  adverse  user,  237 

of  defect  in  sewer;  necessity  of,  329 

of  dangerous  character  of  bees;  presumption  of,  587 
of  dangerous  character  of  animals,                   587,  593,  604,  610,  619 

of  propensity  of  domestic  animals,  598 

of  propensity  of  ram,  610 

of  sale  of  animals  impounded,  601 

to  principal,  by  knowledge  of  agent,                              "  625 

of  servant,  623 

of  fire  to  be  set,  644 

statutory  provisions  as  to  fire-escapes,  661 

of  nuisance,  when  necessary,  54,  55 

of  nuisance  on  premises  acquired,  58-60 

denying  existence  of  highway  in  trespass,  80 

NOVEL  DE  SEIZIN. 

limitation  of  writs  of,  177 

NUISANCES. 

what  are,  0,  10,  153 

distinguished  from  trespass,  152 

public,  40 

both  public  and  private,  78 

business  in  itself  lawful,  11.14 

authorized  act  cannot  be,  307 

by  exceeding  scope  of  powers  conferred,  34 


724  INDEX. 

injury  from  unusual  cause  not  in  itself,  133 

caused  by  act  of  stranger,  104 

not  legalized  by  time,  71 

private,  right  by  prescription  to  maintain,  429 

reasonable  care  as  a  defense,  1 1 

application  of  doctrine  of  contributory  negligen<ft  to,  549 

liability,  of  owner  of  land,  41 

or  occupant,  470 

owner  creating  or  purchaser  or  devisee  continuing,  53 

continuance  of,  470 

on  leased  premises,  liability  of  landlord  for,  40-68 

occurring  during  term  of  lease,  61 

liability  of  tenant,  45 

effect  of  re-demise,  46 

on  premises  descended  subject  to  lease,  56,57 

by  construction    of  building  from  which   ice  and   snow  slide  into 

street,  47,  105 

consisting  in  coal  hole  unguarded  or  defectively  covered,  48,  52 

by  defective  construction  of  building,  51 

of  building  likely  to  fall,  103,  104,  148 

of  repairing  building,  105 

of  buildings  without  fire-escapes,  663 

of  buildings  shutting  off  breeze  or  prospect,  9 

of  smoky  chimneys,  10 

of  tearing  down  buildings,  648 

of  fence  more  than  six  feet  high,  1 0 

created  by  falling  fence,  648 

of  skating  rink,  11 

of  steam  engine,  1 1 

by  operation  of  engine  and  machinery,  153 

of  powder  magazine,  10 

rendering  real  property  useless  or  uncomfortable  for  habitation,  131 

of  fertilizer  factory,  1 1 

of  alkali  works,  151 

of  smelting  house,  438 

of  insufficient  privy  vault,  151 

by  defective  construction  of  privy  well  of  schoolhouse,  344 

by  ice  harvesters,  259 

of  staiths  in  river,  259 

of  bridge,  463 

of  bridge  in  navigable  river,  260 

by  casting  sewage  upon  lands  or  into  private  watercourse,  290 

as  result  of  attempted  improvement  by  city,  331 

by  obstruction  to  street  between  high  and  low  water  mark,  383 

of  dam  across  floatable  stream,  415,  551 

pf  tunnel  under  island,  438 

by  unlawful  obstruction  to  navigation,  468 


INDEX.  725 

private,  by  obstruction  of  watercourse,  476 

an  highways,  public,  72 
use  of    highway  which   would    constitute    except    for  grant    or 

prescription,  35 

by  encroachment,  69 

by  use  of  steam  as  motive  power,  72 

by  use  of  highway  as  market  place,  74 
by  obstruction  of  street,                                                                  248,  383 

cornice  of  building  over  street  as,  264 

bridge  across  street  as,  264 

of  fence  poles  on  edge  of,  1 0 

telegraph  and  telephone  poles  in  streets,  96 

created  by  negligence  in,  99 

owner  of  adjacent  property  must  not  create,  102 

by  insecure  buildings  near  highway.  103 

act  of  stranger  making  building  insecure,  104 

snow,  ice  or  material  falling  from  roof,  45,  105 

repairing  building,  105 

aperture  in  sidewalk,  105 

hole  in  highway,  120 

detracting  from  safety  of  travelers,  131 

of  drinking  troughs  and  fountains  in  street,  336 

remedies  for,  4 1 

private  right  of  action  for  special  injury,  70,  78 

individual  not  entitled  to  redress;  public  nuisance,  75 

action  on  case  for,  41,434 

averment  of  special  damages,  471 

injunction  to  restrain,  76 

information  by  attorney-general  to  restrain,  468 

jurisdiction  of  equity  in  case  of,  476 

abatement  of  public  nuisance  in  equity,  468 

right  of  individual,  75,  469 

by  destruction  of  property,  533 

NULLUM    TEMPUS    OCCURRIT    REGL  71 


OBSTRUCTION. 

of  highways.     See  Highways. 

to  flow  of  waters,  256,  300,  303,  355,  435,  460 

at  bridge;  causing  overflow,  435 

by  bridge,  468 

by  quarry  debris,  432 

remedies  against,  468 

right  to  remove  from  river  to  improve  navigation,  412,  413 

jurisdiction  of  equity  over,  476 


726  INDEX. 

OCCUPANT. 

liability  for  uiiisance,  470 

OCCUPATION. 

of  water  by  mill  owner  ;  priority  of,  645 

OCEAN. 

as  boundary,  393 

ODOR. 

from  artificial  pond  ;  remedy  for,  430 

OFFICERS. 

liability  of  municipality  for  negligence  of,  334 

duty  to  use  public  pound,  601 

liability  for  failure  to  give  reasonable  food  to  impounded  beast,  639 

OHIO    RIVER. 

as  navigable  river  of  United  States,  372 

power  of  regulating  bridges  over,  466 

OIL. 

as  part  of  the  soil  in  which  it  is  found,  80 

liability  for  pollution  of  water  by,  874 

OMNIBUS. 

right  to  stop  in  street  for  passengers,  248 

OOZING.    See  Percolation. 

ORDINANCE. 

liability  of  city  for  failure  to  enforce,  392 

as  to  sale  of  impounded  animals,  601 

regarding  strays,  602 

violation  of,  as  to  powder  magazine,  650 

negligence  in  building,  in  violation  of,  656 

ORDINANCE    OF    1787. 

provisions  as  to  navigable  waters,  372 

effect  of  as  to  free  use  of  navigable  waters,  511 

ORDINARY    CARE. 

what  is,  31 

as  applied  to  dams,  431 

OREGON. 

title  of  land  between  high  and  low  water  mark  on  Columbia  River,      388 
Admission  Act  not  violated  by  bridge,  464 

OUSTER. 

by  flooding  land,  432 

of  corporation  ;  effect  on  fishery,  500 


INDEX.  727 

OUTLET. 

insufficient ;  liability  for  consequent  overflow,  435 

OVERFLOW. 

caused  by  obstruction  of  watercourse  ;  liability  for,  438 

injurious  effect  of  on  lands,  433 

caused  by  bridge  ;  liability  for,  434 

from  unprecedented  storm  ;  liability  for,  435 
caused  by  levees,  trestles,  etc.,  where  flow  was  increased  by  natural 

causes,  467 

caused  by  floating  logs  on  stream,  556 

OVERSEERS    OF    THE    POOR. 

powers  of,  346 

OWNER. 

liability  for  dangerous  condition  of  premises,  41 

liability  for  nuisance,  44,  470 

on  estate  descended  or  acquired  subject  to  lease,  56,  57,  59 

of  soil,  right  of  absolute  dominion,  147 

subject  to  easement;  rights  of,  265 

liability  for  lack  of  fire  escapes  on  leased  buildings,  663 

of  city  lots;  duty  regarding  surface  or  percolating  waters,  302 

right  to  control  surface  or  superticially  percolating  waters,  294 

OWNERSHIP. 

of  States,  372 

recital  of  in  agreement  as  to  use  of  water  459 

OYSTERS. 

exclusive  grant  by  State  of  right  to  raise,  379 
citizens  of  other  States;  discrimination  against  as  to  oyster  fisheries, 

379,  493 

intent  as  to  violation  of  law  against  nonresident  planting  oysters,  494 
planting  of  does  not  give  title  to  laud  under  water  by  prescription,        424 

grant  of  right  to  dredge  for,  500 

rights  as  to  oyster  fisheries,  536 

lawful  lime  for  planting  and  gathering,  540 


PACIFIC  STATES. 

riparian  rights  in,  443 

prior  appropriation  of  waters  in,  444 

PAPER-MILL. 

grant  of  water  for;  quantity,  423 

PARENT. 

recovery  for  injury  to  child  by  dog,  •  G24 


728  INDEX. 

PARK. 

action  for  hunting  in,  528 

liability  for  injury  by  deer  in,  630 

PARTITION. 

of  party-wall,  214 

PARTNER. 

liability  for  dog  owned  by  firm,  *  .  623 

PARTY-WALL. 

injury  to,  by  contractor;  liability  for,  89 

attempt  to  raise  to  darken  windows,  179 

closing  up  windows  in,  211 

easement  in,  beyond  boundary,  170 

agreement  in  relation  to,  to  create  easement,  184 

easement  of  support,  201 
title  in  and  right  to  strengthen  and  elevate;  contribution  for  repair,       208 

destruction  of,  216 

covenants  respecting;  personal  and  those  running  with  land,  219 

liability  for  injury  in  constructing,  elevating  or  repairing,  231 

use  to  support  independent  wall,  231 
ownership  and  right  to  use,                                                               205,  206 

agreement  to  build  as  creating  an  estoppel,  211 

contribution  to  expense  of,  225 

PASSAGE. 

on  rivers;  right  of,  '  416 

PASSAGEWAY.     See  also  Slctceway. 

as  appurtenant  to  easement,  159 

right  to  cover  or  build  fence  upon,  253 

right  of  light,  air  and  prospect  over,  253 

PASSIAC  RIVER. 

rights  of  City  of  Newark  in,  -'  453 

PASSENGER. 

on  ferry;  rights  of;  liability  for  injuries  to,  488 

PASTURE. 

grant  of  right  of,  carrying  right  of  way,  243 

PATENTS. 

calling  for  river  and  its  meanders;  effect  as  to  soil  under  water  in  Ken- 
tucky, 388 

PEAT  BED. 

right  to  draw  water  from,  257 

liability  for  starting  fire  in,  643 


INDEX.  T2i> 

PECULIAR  INJURY. 

in  case  of  uuisauce,  ■what  is,  472 

PENALTY. 

against  use  of  state  lands  by  citizens  of  other  States  for  raising  oysters,  379 

for  fishing  witbout  license,  536 

for  willfully  setting  fire,  G45 

PERCOLATION.    ' 

of  water;  liability  for  injuries  by,  269 

of  water  from  gutters  and  catcb-basins  in  highway,  350 

of  underground  waters,  not  within  doctrine  of  prcscripllon,  425 

right  to  draw  water  from  pond  by,  454 

PRE-EMPTIONER. 

right  of  as  to  water,  449 

PERIL. 

duty  not  to  creaia,  666 

PETROLEU^I. 

part  of  soil,  80 

PIER. 

public  or  private,  563 

right  to  enter  upon,  390,  565 

right  to  make,  358,559 

right  of  boom  company  to  construct,  556 

in  navigable  part  of  Mississippi  River,  386 

constructed  under  Act  of  Congress,  380 

dangerous  defect  in,  liability  for,  48 

liability  of  tenant,  67,  568 

liability  of  landlord,  112 

when  a  nuisance,  477 

appropriation  of  by  railroad;  compensation  to  owner,  386 

of  bridge;  necessity  of  clianging,  467 

PIGS. 

injury  by  to  cow  and  calf,  593 

PILGRIM  FATHERS. 

notions  as  to  rights  of  common  people,  509 

PILING. 

elTeot  to  cause  overflow ;  liability  for,  435 

of  bridge  in  making  repairs;  liability  for  injary  by,                   '  559 

PISCATAQUIS  RIVER. 

as  floatable  stream,  550 

PLACE  OF  AMUSEMENT. 

requirement  of  fire  escapes  upon,  '061 


ToO  INDEX. 

JPITFALLS.     See  also  Excavatiojt. 

grounds  of  liability  of  owner  of  land,  150 

PLAN. 

conveyance  of  lots  upon  as  giving  easement,  161 

defective;  liability  of  city  for,  329 

PLANKS. 

power  to  float  as  test  of  navigability,  406 

PLATFORM. 

made  of  scow  moored  to  wharf,  567 

PLEADING. 

averment  of  negligence  in  trespass,  8 1 

allegations  as  to  diversion  of  stream,  458 

matters  of  aggravation,  459 

averment  of  special  damages,  471 

allegation  of  damages  as  to  renting  of  house,  476 

averment  of  navigabinty  of  stream  in  suit  for  injunction,  476 

necessary  averments  of  scienter,  619 

PLEASURE. 

prerogative  right  of,  502 

PLUMBER. 

right  of  water  company  to  make  selection  of,  39 

negligent  work  of  in  laying  drain;  liability  of  city  for,  333 

POISONOUS  TREE. 

liability  for,  123 

POLES. 

for  telegraph  and  telephone  in  street,  right  to,  95 

liability  for  injury  by  fall  of,  142 

in  streets  for  street  cars,  251 

and  wires,  preventing  extinguishment  of  fires,  668 

POLICEMAN. 

falling  over  unprotected  edge  of  lot  in  pursuit  of  person,  122 

injury  to  by  explosion  of  electric  apparatus,  156 

POLICE  POWER. 

to  limit  height  of  fence,  12,13 

difference  of  degree,  12 

POLLUTION. 

of  water  by  tenants;  liability  of  landlord,                      *  45 
of  underground  currents,  springs  and  streams,                               155,  274 

of  wells  and  springs,  287 

of  stream,  by  washing  of  soil  from  cultivated  land,  9 

by  offal  from  bam,  8 


INDEX.  73 1 

by  refuse  of  mine,  1 55 

by  sewage,  291 

injunction  to  prevent,  293 

as  a  nuisance;  right  of  action  for,                                         ^^  80 

POND. 

as  distinguished  from  stream,  358 

detaining  waters  in  for  water  supply,  257 

in  Massachusetts  held  in  trust  for  public,  383 

as  boundary  of  land,                                                                 -  394 

easements  in  acquired  by  grant,  418 

grant  of  right  to  draw  water  from,  423 

right  to  draw  water  from  by  percolation,  454 

rights  to  appropriate  waters  of,  454 

right  to  lower  outlet  and  draw  down,  547 

protection  of  licensee's  right  in,                            ,  457 

control  of  fisheries  in,  495 
right  to  fish  in,                                                                                   257,  499 

Colonial  Act  as  to  fish  and  fowl  of,  509 

trespassing  upon,  for  fishing,  517 

decoy;  willfully  disturbing  by  shooting,  527 

artificial  remedy  for  ofifensiveness  of,  430 

made  in  stone  quarry,  540 

proximate  cause  as  to  injury  from  breaking  of,  651 

POND-NET. 

removing  stakes;  suit  for,  535 

POOL. 

water  in;  ownership  of,  357 

POOR. 

overseers  of;  powers  of,  346 

POSSESSION. 

action  for  in  respect  to  reservation  of  wharf  ptivileges,  561 

POSTING. 

of  notices  of  sale  of  animals  impounded,  601 

POTOMAC   RIVER. 

injury  to  fish  in  by  anchoring  vessel,  538 

POULTRY. 

trespass  by,  59?. 

POUND-KEEPER. 

liability  for  sale  of  animal  without  notice,  600 

replevin  against,  602 

POWDER  MAGAZINE. 

as  a  nuisance,                                                              '  10 

liability  for  explosion  of,  630 


732  INDEX. 

PRAIRIE. 

turning  cattle  upon,  594 

forbidding  fires  in,  644 

PRAIRIE  FIRES. 

forbidden,  644 

proximate  cause  of  injury  caused  by  back  fire,  651 

liability  for  damages  caused  by,  659 

PREMISES.     See  also  Excavation. 

dangerous,  liability  for  injuries  caused  by,  16 

duty  to  keep  safe,  18 

PREROGATIVE. 

rights  of  King,  in  rivers,  502 

as  to  hunting,  503 

PRESCRIPTION. 

when  adverse,  237' 

claim  of  right  necessary,  427 

as  to  use  of  highway  which  would  otherwise  be  a  nuisance,  35- 

easement  by,                                                                                     '  176 

use  to  create,  234 

interruptiou  of,  236 

to  defeat  or  destroy  public  use  of  stream,  417 

no  right  by  to  obstruct  stream,  460- 

easements  in  flowing  water  acquired  by,  424 

presumption  of  grant  of  water  from,  424 

right  by  to  dam  and  water  of  stream,  550- 

as  to  use  of  flume,  427 

as  to  use  of  water  on  public  lands,  446- 

to  justify  fishing,  499 

to  give  right  to  create  warren,  527 

right  by  to  bar  passage  of  fish,  532- 

to  give  right  to  make  wharf,  etc.,  559 

against  exercise  of  servitude,  580- 

easement  acquired  by  perfect;  extinguishment  of,  581 

to  make  dividing  line  equivalent  to  fence,  596 

PRESERVATION. 

of  fish;  provisions  for,  640- 

of  game;  statutes  for,  541 

PitESUMPTION. 

of  negligence  from  cause  of  injury,  133,  147 

as  to  danger  from  machinery,  146- 

as  to  defective  appliances  in  case  of  injury  to  passenger,  155 

as  to  party-wall,  203 

of  grant  of  way,  237 

as  to  continuance  of  unlawful  diversion,  459 


INDEX.  733 

as  to  immemorial  use  of  fishery,  499 

of  release  or  discharge  of  easement,  580 

of  notice  as  to  dangerous  character  of  bees,  587 

as  to  amount  of  damage  done  by  each  of  several  animals,  594 

of  negligence  by  permitting  horse  to  escape,  612 

PRIORITY. 

of  occupation  or  use  of  water  by  mill  owner,  545 

PRIVATE  FISHERIES. 

right  of  owner  of  both  sides  of  stream,  501 

See  also  Fisheries. 

PRIVATE  STREAMS. 

what  are,  402 

liability  for  emptying  sewage  into,  291 

PRIVATE  WAY. 

acquired  for  inhabitants  of  town  by  prescription,  235 

presumption  of  grant  of,  237 

PRIVITY. 

of  estate  or  tenure,  222,  224 

as  to  easement  in  party-wall,  184 

PRIVY. 

liability  for  insufficiency  of  wall,  151 

of  school-house;  defective  construction  of  well  of,  344 

liability  for  leaving  vault  of  unguarded,  near  sidewalk,  122 

PROFIT  A  PRENDRE. 

effect  of  custom  to  create,  188 

right  to  soil  or  profits  of  soil  of  another,  355 

PROFITS. 

prospective,  from  use  of  fishing  nets,  539 

PROPERTY. 

right  of  owner's  use,  extent  of,  147 

reasonable  limitations  as  to  enjoyment,  152-156 

PROPAGATION  OF  FISH. 

provisions  for,  540 

PROPOSED  STREET. 

conveyance  of  lots  abutting  on,  .  "  161 

PROSPECT. 

over  passageway;  right  of,  253 

PROTECTION  OF  FISH. 

legislative  regulations  for,  529 


734  INDEX. 

PROVIDENCE. 

gifts  of,  35r 

interposition  of;  effect  on  easement,  576- 

PROXIMATE  CAUSE. 

as  creating  liability  for  injury,  142 

of  injury  from  broken  dam,  650 
of  injury  by  striking  projecting  cellar  door  when  falling  upon  ice,         107 

of  injury  caused  by  frightened  horse,  651 

of  injury  to  driver  of  runaway  horse  frightened  by  street  car,  107 

of  fire  resulting  from  falling  building,  652 

of  scalding  of  horses  on  breaking  of  bridge  by  steam  boiler,  656 

PRUDENCE.     See  also  Negligence. 

not  judged  by  event,  185- 

amount  required  in  constructing  dam,  432 

PUBLIC  BRIDGE.     See  also  Bridge. 

right  to  build,  463- 

PUBLIC  LAND. 

floatable  streams  as  part  of.  404 

prior  appropriation  of  waters  on,  444 

PUBLIC  PIER.     See  also  Pier. 

what  is,  56S 
right  to  use,                                                                                     390,  565 

PUBLIC  RESORT. 

liability  for  animals /e?'<E  naturce  in,  689" 

PURCHASER.     See  also  Grantee. 

liability  for  nuisance,  54 

necessity  of  notice,  54 
right  of  as  to  party-wall,                                                                    219,  230- 

liability  as  to  bank  or  wall  along  river,  46 1 

PURSE  SEINES. 

prohibiting  use  of,  535- 


QUAIL. 

statutes  as  to  time  for  killing,  543- 

transportation  of,  643- 

QUANTITY. 

of  water  conveyed  by  grant,  422- 

rule  for  computing,  423 

QUARRY. 

'ise  of  to  draw  water  from  pond,  454; 


INDEX.  735- 

QUASI  EASEMENT. 

■what  is,  166 

QUESTION. 

for  jury,  as  to  negligence,  539,  668 

as  to  care  of  person  injuicd,  130 

as  to  reasonable  safety  of  cover  to  opening  in  sidewalk,  130 

as  to  abandonment  of  easement,  577 

as  to  proximate  cause,  658 

QUOD  PERMITTAT. 

as  remedy  for  nuisance,  434 


RABBITS. 

ftvce,  naturw,  587 

RACEWAYS. 

easements  in,  571 

RAFT. 

right  to  does  not  carry  right  to  deposit  timber  on  private  property,        562 

RAILING. 

duty  to  erect  around  opening,  20 

with  pointed  top;  injury  to  traveler,  26 

want  of,  along  unsafe  embankment,  liability  for, 


47 


along  highway,  duty  to  make,  1 20 

RAILROAD. 

ownership  of  adjacent  lands  under  water,  395 

running  locomotive  over  common  path  without  warning,  20 

use  of  streets  for  switch-yard  for  making  up  trains,  3-4: 

on  highways  as  nuisance,  72 

on  shores  of  navigable  rivers,  when  a  nuisance,  478 

breaking  of  rail  from  frost,  137 

right  of  land  owner  to  use  of  right  of  way,  240 

liability  for  switch  improperly  placed,  253 

liability  for  injuries  to  laud  not  taken,  266 

liability  for  interfering  with  surface  water,  297 

prescriptive  right  to  overflow  lands  by  defective  bridge,  429 

liability  for  overflow  caused  by  bridge,  434 

duty  to  maintain  draw-bridge  in  river,  466 
liability  for  overflow  caused  by  levees,  trestles,  etc.,  where  flow  was 

increased  by  natural  causes,  467 
liability  for  setting  fire  by  locomotives,                                  643,  665,  666 

duty  to  extinguish  fires  set  by  locomotives,  646 

destruction  of  property  to  prevent  spread  of  fire,  647 

negligence  in  placing  hay-stacks  near,  665 


736  INDEX. 

RAILROAD  CAR. 

liability  for  injury  by  to  boy,  684 

RAINFALL. 

unusual;  liability  for  injury  by,  332 

liability  for  collecting  from  roof  and  discharging  on  land  of  others,      297 

RAKES. 

disturbing  oysters  by,  537 

RAM. 

notice  of  propensities  of,  610 

procured  by  tenant;  liability  of  executor,  623 

RANCH. 

right  to  -waste  water  from,  under  judgment,  450 

RAVINE. 

not  natural  watercourse,  358 

right  to  discharge  surface  water  through,  424 

REASONABLENESS  OF  USE. 

of  waters,  410 

of  floatable  and  private  stream,  402 

for  mill,  545 

RECITALS. 

in  deed  as  to  right  in  party-wall,  215 

in  agreement  as  to  use  of  water;  estoppel  by,  '  459 

RECLAIMED  LAND. 

rights  of  littoral  proprietors,  359 

power  of  riparian  owner  to  reclaim,  381 

by  wharf;  title  to,  385 

made  by  breakwater;  ownership  of,  563 

RECREATION. 

right  of,  by  custom,  188 

boating  for,  188 

prerogative  right  of,  502 

RECORD. 

of  sealed  release  of  easement;  failure  to  make,  572 

REFUSE. 

offense  of  putting  in  waters  where  fish  are,  540 

RELEASE. 

to  extinguish  easement,  570 

REMAINDERMEN. 

liability  for  nuisance  on  estate  descended  subject  to  lease>  56 


INDEX.  t  li  t 

REMEDY.     See  also  Abatement;  Action;  Nuisance. 

for  diversion  of  flowing  water,  455 

for  obstruction  to  flow  of  stream,  468 

RENTAL  VALUE. 

diminished  by  overflow ;  as  measure  of  damages,  434 

RENUNCIATION. 

of  easement,  576 

REPLEVIN. 

against  poundkeeper,  601 

RESERVATION. 

of  easement,  159 

right  to  accretions,  400 

of  fish  in  grant,  500 

of  wharfing  privileges,  560 

of  right  of  cutting  timber  and  grazing  in  woods,  579 

RESERVOIR. 

lial)ility  of  escape  of  water  from,  270-272 

liability  for  insufHciency;  construction  of,  439,  546 

right  to  have  water  held  back,  423 

of  upper  proprietor;  right  of  lower  grantee  to  use,  424 

right  to  take  waters  from  stream  for  use  of  locomotive  engines,             457 

right  to  the  fish  in  when  drained,  500 

contribution  to  maintenance  of,  547 

RESPONDEAT    SUPERIOR.  37,  335 

RESTRICTIONS. 

upon  fishing  and  hunting  rights,  503 

REVERSION. 

liability  of  owners  of,  subject  to  lease,  for  nuisance,                                 57 

effect  of  agreement  between  tenants  for  years  as  to  party-wall,  205 

REVOCATION. 

of  license,  181 

of  contract  for  driving  logs,  557 

RIFFLES. 

effect  of  on  navigability  of  stream,  403 

RIGHT  OF  WAY. 

as  an  easement  in  gross,  159 

bj'^  necessity,  166 

degree  of  necessity,  166-176 

use  to  create,  234 

license  to  establish,    .  238 
47 


738  INDEX. 

extent  of  use,  238 

across  railroad;  acquired  by  prescription;  extent  of,  239 

implied  in  grant  of  pasture,  etc.,  243 

to  reach  hi,£^hway;  effect  of  discontinuing  highway,  844 

care  required  in  use  of  845 

right  to  remove  gates,  845 

right  to  erect  gates,  245 

reasonable  use,  245 

right  of  foot-way,  245 

to  buildings;  effect  of  decay  of  buildings,  575 

effect  of  destruction  of  buildings  upon,                                    .  5"? 3 

effect  of  habitual  use  of  another  way,  579 

RIGHT. 

writ  of,  177 

RIPARIAN  RIGHTS. 

what  are,  358 

title  of  riparian  owner,  375 

where  bounded  by  high-water  mark,  379 

where  by  low-water  mark,  380 

railroad  company  as  adjacent  owner  of  lands  under  water,  395 

effect  of  railroad  on  other  owners'  rights,  395 

in  floatable  and  private  streams,  402 

reasonable  use  of  floatable  and  private  streams,  402 
as  to  natural  flow  of  stream,  409,  460 
right  to  divert  water  of  stream,                                                         409,  410 

authority  of  company  to  take  water  from  stream  to  a  distance,  410 

as  to  waters  diverted  to  supply  cities,  451 

reasonable  use  of  water,  410 

as  to  use  of  water  of  lake,  411 

damage  to  by  obstruction  of  watercourse;  what  consists  of,  432 

as  to  use  of  running  water,  440 

remedy  for  diversion  of  flowing  water,  455 

on  navigable  waters  does  not  extend  to  fish  or  fowl,  510 

exclusiveness  of  as  to  use  of  nets  and  appliances  fastened  to  soil,  517 

to  appropriate  bank  for  logs  and  log-way,  556 

RIVERS.    See  also  Waters. 

right  to  cut  and  take  ice  from,  260 

as  public  highways,  383 

title  of  riparian  proprietors,  383 

as  boundary  of  laud,  394 

title  to  bed  on  change  of  course,  398 

test  as  to  private  ownership,  416 

easement  in  acquired  by  grant,  418 

ROCK. 

right  to  remove  ledge  of  from  stream,  462 


INDEX. 


:3a 


ROOKERY. 

action  for  disturbance  of, 

RUNNING  WATER. 

right  to  use  of, 


528 


410,441 


ST.   LOUIS. 

eastern  boundary  of  in  Mississippi  "River, 

SALE. 

right  to  hold  water  for, 

of  water  by  riparian  owner, 

of  animals  impounded, 

SALUS  POPULI  EST   SUPREMA  LEX. 

SAND. 

accumulated  as  effect  of  dam;  liability  for, 

SAND  BANK. 

as  tide  land, 

SAND  BARS. 

effect  of  on  navigability  of  stream, 

SAND  HEAPS. 

as  islands. 


SAVANNAH   RIVER. 

jurisdiction  over, 

SAW-DUST. 

offense  of  putting  in  waters  where  fish  are, 
deposit  of  to  destroy  boating, 

SCHOOL  BUILDINGS. 

requirement  of  lire-escapes  upon^ 

SCHUYLKILL  RIVER. 

jurisdiction  over, 

SCIENTER. 

as  to  character  of  animals, 
knowledge  of  servant, 

SCOW. 

as  platform  moored  to  wharf, 

SCUM. 

on  artificial  pond;  remedy  for. 


593.  604,  610. 
593,604,  610, 


389 

446 
450 
601 

321 

433 

383 

403 

383 

372 

540 
562 

661 

372 

615.619 
615.  619 

567 
430 


740  INDEX. 

SCUTTLE-HOLE. 

in  sidewalk,  liability  for  injuries  occasioned  by,  108,  114 

SCUTTLING  OF  BOAT. 

proximate  cause  of  lire,  656 

SEALED  INSTRUMENT. 

releasing  easement;  failure  to  record,  578 

SEALS. 

right  of  taking,  497 

SECRETARY  OF  WAR. 

as  agent  of  Congress  to  determine  lawfulness  of  bridge,  465 

SEEDS  OF  DISEASE. 

as  unsoundness  of  horse,  635 

SEINES. 

prohibiting  use  of,  535 

as  obstruction  to  navigation,  640 

SELF-DEFENSE. 

killing  dog  in,  628 

SERVANT.    See  also  Master. 

liability  for  animal  kept  by,  621 

knowledge  of  will  charge  master,  623 

liability  for  fires  started  by,  645 

willfully  setting  fire;  penalty  for,  645 

SERVIENT  OWNER.    See  Easement. 

SERVITUDE.     See  Easement. 

SETTING  BACK  WATER. 

to  damage  of  upper  mill  owner;  liability  for,  548 

SETTLER. 

on  public  lands;  right  to  appropriate  water,  446 

SEVERAL  FISHERY. 

what  is,  498 

SEWAGE. 

damage  by  escape  in  cellar;  liability  for,  273 

discharge  of,  filling  up  channel,  562 

SEWERS. 

private,  liability  for  damage  to  others,  1 23 

liability  of  town  for  damages  occasioned  by,  265,  289,  325 

liability  of  municipality  for  negligence  in  respect  to, 


310 


right  of  city  to  empty  into  sea, 


308 


INDEX.  741 

SHED. 

lor  public  purpose  as  connecting  liuk  between  laud  and  water  carriers,  391 

SHEEP. 

trespass  by,  691 

close-berded;  trespass  by,  693 

driven  on  land  for  pasturage,  as  trespassers,  696 

worry  of  as  cause  for  killing  dog,  686 

SHELL  FISH.     See  also  OvsTEns. 

rigbt  to  take  below  bigb-watcr  mark,  686 

right  of  gathering  at  common  law,  610 

right  to  drag  for,  637 

SHINGLE-MILL. 

change  of  machinery  in,  as  affecting  amount  of  water  allowable  for,    422 

SHIPPING. 

hindering  passage  of  vessels  by  filling  up  flats,  381 

injury  to  vessel  by  striking  bottom  of  slip,  369 

injury  to  old  and  unseaworthy  vessel,  369 

right  of  action  for  injury  to  vessel  by  defective  bridge,  472 

use  of  licensed  vessel  in  fisheries,  496 

SHOOTING.     See  also  Huntixo. 

for  purpose  of  disturbing  decoy  pona,  687 

SHOP. 

duty  to  keep  safe,  19 

SHORES.    See  also  Waters. 

of  navigable  waters  not  granted  to  United  States,  371 
title  of  national  or  state  government  in  sea  shore  aud  banks  and  beds 

of  tidal  streams,  377 

control  of  municipal  corporations  over,  390 

structures  upon,  390 

title  to  lands  conveyed  along  water  front,  390 

alluvion,  accretion  and  dereliction,  396 

right  to  draw  nets  upon  not  belonging  to  fishery,  499 

authority  of  boom  company  to  use,  656 

SHRIMPS. 

lawful  time  for  planting  and  gathering,  540 

SIC  UTERE  TUO  UT  ALIENUM  NON  L.^DAS 

7,  32, 148,  195,  344,  361.  438,  532,  546 

SIDEWALK. 

as  invitation  to  use  land,  80 

invitation  to  enter  upon  premises,  20 

duty  of  tenant  to  keep  safe,  52 

aperture  in,  liability  for,  108 


742  INDEX. 

excavation  in  or  near,  116 

driving  upon  in  violation  of  ordinance,  130 

SKATING  RINK. 

as  nuisance,  11 

SLATS. 

negligently  placed  in  road,  liability  for,  150 

SLED. 

damage  by  stake  of,  to  sleigh  in  highway,  366 

SLEIGH. 

upsetting  of,  as  presumptive  negligence,  156 

upset  by  Striking  switch;  liability  of  railroad,  253 

upsetting  of  in  highway;  liability  for,  366 

SLIDING. 

on  sidewalk;  injury  to  traveler,  366 

SLIP. 

injury  to  boat  by  striking  bottom  of,  369 

SLUICES. 

right  to  make  from  running  brook,  442 

SLUICEWAYS. 

for  logs  past  dam,  549 

sufficiency  of,  552 

effect  of  increased  capacity  of  stream,  552 

SMELTING  HOUSE. 

as  nuisance,  438 

SMOKE. 

of  smelting  house  as  nuisance,  438 

SNOW. 

fall  from  roof,  liability  for,  8,  47,  105 

no  proof  of  negligence  needed,  .  14 


SOAP  FACTORY. 

as  nuisance, 


131 


SOGGY  LANDS. 

caused  by  percolation,  430 

SOIL. 

lateral  support  of,  190 

liability  for  abstracting,  270 

of  another;  right  to  profits  of,  355 

between  high  and  low  water  mark;  vested  interest  la,  382 

liability  for  fire  spreading  in,  642 


INDEX.  743 

SOUNDNESS, 

warranty  of,  634 

SOVEREIGN. 

title  of  to  land  unacr  water  and  shores  of  navigable  waters,  378 

SOW. 

injury  by  to  cow  and  calf,  698 

SPANISH  FEVER. 

duty  of  owners  of  cattle,  633 

SPECIAL  INJURY. 

from  nuisance;  what  constitutes,  472 

SPLENIC  FEVER. 

duty  of  owners  of  cattle,  633 

SPORTING. 

regulatioQ  of  by  Legislature,  529 

SPORTSMEN. 

clubs  of,  attempt  to  acquire  exclusive  rights,  515 

SPOUT. 

liability  for  damage  by  water  from,  2  70 

SPREAD. 

of  fire,  prevention  of,  646-648 

of  cholera,  prevention  of,  648 

SPRING. 

interrupting  supply  of,  16 

right  to  take  water  from,  165 

license  to  use,  right  to  revoke,  185 

right  to  use;  extent  of  right,                               "  257 
pollution  of,                                                                                        274,  280 

effect  upon,  of  clearing  or  cultivating  land,  281 

ownership  of,  452 

right  to  divert,  453 

right  to  appropriate  water  of  under  charter,  454 

effect  of  drying  up  on  easement,  576 

SPRING  GUNS. 

liability  for  setting,  16 

SQUIB. 

liability  for  injury  caused  by,  144 

SQUIREARCHY. 

as  affecting  English  law,  528 

STAG. 

knowledge  of  dangerous  character  of,  631 


744  INDEX. 

STAGNATION. 

of  waters;  liability  for  permitting,  304 

STAIRWAY. 

liability  for  injury  to  person  slipping  upon,  139^ 

in  building;  right  of  part  owners  to  use,  164 

STAKES. 

for  pond-net;  removal  of,  536 

STALLION. 

care  required  to  be  taken  of,  BO© 

STATE. 

ownership  of  land  below  low-water  mark,  379 

protest  of  against  bridge  over  navigable  waters,  465 

authority  as  to  bridge  over  navigable  river,  464,466 
power  to  make  railroad  maintain  draw-bridge  in  river  between  two 

States,  466 

control  of  fisheries  in,  492 

sale  of  land  below  high-water  mark  by,  560 

prescribing  lines  for  harbor,  563 

regulation  of  wharfage  charges  by,  569 

STATUTE. 

authority  of,  as  a  defense  for  injury  by  business,  15-4 

preservation  of  game,  541 

as  legislative  grant,  561 

of  Limitations,  as  to  claim  of  easement,  581 

provisions  of  against  kindling  fires,  660 

STEAM. 

operation  of  street  railroads  by,  90,  251 

scalding  horses  on  breaking  of  bridge,  656 

STEAMBOAT. 

liability  for  drowning  of  passenger  who  falls  overboard,  138 

injury  by  defective  draw-bridge;  right  of  action  for,  472 

STEAM-BOILER. 

liability  for  explosion  of,  1 53 

breaking  bridge  by  weight  of,  656 

STEAM-ENGINE. 

as  nuisance,  11,  153 

STEAM   THRESHER. 

liability  for  fire  caused  by  sparks  from,  666 

STEPS. 

to  cellar-way,  liability  for  leaving  unprotected,  41 


INDEX.  745 

STOCK    LAW. 

of  J^ortli  Carolina,  599 

No-Fence  Law  of  Georgia,  599 

STONE. 

grant  of,  how  made,  356 

STONE   COPING. 

fall  of,  from  chimney,  149 

STONE  QUARRY. 

making  ornamental  pouJ  in,  540 

STORE. 

duly  to  keep  safe,  19,  20 

STORAGE. 

of  logs  on  bank,  right  to,  556 

STORM. 

duty  to  provide  for  in  making  dam,  431 

unprecedented;  liabilily  for  overflow  caused  by,  435 

STRAND. 

meaning  of,  378 

STRAYS. 

damages  done  by,  586 

municipal  ordinances  regarding,  602 

STREAM.     See  also  Waters. 

diversion  of;  right  to  restore,  186 

right  to  divert  waters  of,  440 
pollution  of,                                                                    8,  9,  274,  279,  296 

right  to  use  as  a  highway,  360 

ownership  of  waters  in,  357 

title  to  bed  of  above  tide-water,  389 

floatable;  navigability  and  ownership  of,  402 

easements  in  acquired  by  grant,  418 

right  to  unobstructed  flow  of,  355 
obstructions  to  flow  of,                                                                  7,  256,  460 

by  public  agents  under  legislative  authority,  389 

right  to  build  bridge  over,  462 

navigability  of  above  tide,  375 

abandonment  of  navigability,  523 
See  also  Navigable  Waters. 

STREETS.     See  Highways. 

STREET   RAILROADS. 

conditions  imposed  upon;  alteration  of,  67 


^46  INDEX. 

motive  power,  87,  88 

chauge  of,  95 

operated  by  steam;  when  not  allowed,  90 

when  allowed,  92 

right  to  use  electric  motors,  94 

presumption  of  negligence  from  collision,  155 

STUBBLE. 

liability  for  setting  fire  to,  645 

SUBMERGENCE. 

effect  of  on  title  to  land,  400 

SUBTERRANEAN   WATERS. 

distinction  between  surface  water  and,  279 

pollution  of,  274- 

SUPERIOR   POWER. 

suspension  of  easement  by,  575 

SURFACE   WATERS.     See  also  Watees. 

liability  for  injuries  by,  269 

distinction  between  rights  in  surface  and  subterranean  waters,  279 

right  of  land  owner  to  control,  294 

limitation  of  right,  294 

liability  of  city  for  damages  by,  325 

as  a  watercourse,  358 

SUSPENSION. 

of  easement  by  superior  power,  575 

SUSQUEHANNA   RIVER. 

right  to  fisheries  in,  514 

SWAMP   LANDS. 

reclaiming;  damage  to  farm  land  caused  by,  308 

SWINE.    See  Hogs. 

SWITCH-YARD. 

use  of  street  as,  34 


TALKING. 

in  loud  tone  on  highway  as  contributory  negligence  in  case  of  injury 

by  dog,  632 

TANNERY. 

as  nuisance,  131 

injury  to  spring  from,  280 


INDEX.  Ti  ( 

TAX. 

upon  dogs,  628 

TAX   DEED. 

boundary  by  river,  395 

TELEGRAPH. 

pipes  for  wires  in  streets,  98 

injury  to  brakeman  by  wire,  140 

poles  in  streets,  right  to.  95 

wires,  preventing  extinguishment  of  fire,  668 

TELEPHONE. 

poles  iu  streets,  right  to,  95 

pipes  for  wires  in  streets,  98 

wires  preventing  extinguishment  of  fires,  668 

TENANT. 

duty  as  to  sidewalk,  52 
liability,  for  nuisance,                                                               40-68.  45,  55 

for  keeping  nuisance,  55 

for  nuisance  occurring  during  tenancy,  6 1 

necessity  of  notice  as  to  nuisance,  55 

of  pier,  liability  of  for  injury,  568 

right  of,  as  to  fire-escapes,  662 

TENEMENTS. 

common;  injury  to;  suit  to  restrain,  475 

TERRAPINS. 

lawful  time  for  planting  and  gathering,  540 

TEXAS  FEVER. 

duty  of  owners  of  cattle,  633 

THEATERS. 

requirement  of  fire-escapes  upon,  661 

THRESHER. 

liability  for  fire  caused  by  sparks  from,  666 

THREAD  OF  STREAM. 

as  line  of  ownership,  521 

TIDAL  STREAMS. 

navigability  of,  373 

TIDE. 

obstruction  of  flow  by  structures,  381 

TIDE  MILLS. 

right  of  owners  to  have  flats  kept  open,  381 


748  INDEX. 

TIDEWATER. 

right  to  have  flow  over  premises  of  others,  381 

TIMBER. 

liability  for  servant's  failure  to  remove  from  street,  Sft 

standing  upon  a  road  way,  right  to  remove,  'J'ft 

grant  of,  how  made,  355 

right  to  raft  does  not  carry  right  to  deposit,  562 

reservation  of  right  to  cut,  579 

protection  of  against  fire,  661 

investigating  as  to  cause  of  fires  under  statute,  661 

TIME. 

computation  of  to  show  prescription,  428 

TITLE. 

admission  of  in  deed  reserving  water-right,  459 

TOBACCO  MILL. 

as  nuisance,  131 

TOLL. 

of  fish  for  drawing  boats  upon  beach,  497 

TOLLBRIDGE. 

right  to  build,  463 

TONNAGE  TAX. 

power  to  impose,  391 

TORNADO. 

liability  for  fall  of  building  caused  by,  106 

TORT. 

damage  must  come  fi'om  wrongful  act,  152 

actions  of;  usual  remedies  for  diversion  of  water,  458 

TOWN. 

right  of  inhabitants  to  private  way,  23& 

erecting  bridge  at  joint  expense  of  towns,  464 

grant  of  bed  of  river  by,  does  not  pass  right  of  fishing,  494 

right  to  regulate  fisheries,  540 

TOWN  HALL. 

right  to  derive  revenue  from  by  renting,  345 

liability  of  city  as  private  owner  of,  S4& 

TRAFFIC. 

liability  for  injury  caused  by,  without  negligence,  146 

TRAINS. 

stoppage  on  street,  34 


INDEX.  74l> 

TRAP-DOOR. 

failure  to  guard  or  give  warning  of,  22 

TRAPS. 

liability  for  setting,  16 

for  children  at  play,  32 

prohibiting  use  of  for  fish,  535 

for  cattle;  by  negligent  fence,  598 

TRAVELER. 

who  is,  125 

person  engaged  in  unloading  goods,  125 

stepping  upon  street  to  observe  procession,  126 

right  to  pass  over  adjoining  lands  when  road  is  impassable,  124 
negligence  causing  injury  to,                                                              116-132 

right  to  recover  for  injury,  125 

care  required  from,  124 

contributory  negligence  of,  126 

driving  at  lively  rate  in  city  streets,  127 

driving  blind  horse,  127 

right  to  assume  safety  of  street,  114 

knowledge  of  danger,  1 28 

violation  of  ordinance  by  driving  on  sidcAvalk,  ISO 

negligence  in  running  on  sidewalk  in  the  dark,  130 

for  pleasure,  right  upon  navigable  water,  514 

TREES. 

liability  for  fall  of  limbs,  122 

liability  for  poisonous,                                                 '  123 

right  of  grantee  to  enter,  to  cut  and  carry  away,  418 

TRESPASS. 

misjoinder  of  causes  of  action  in,  459 
for  encroachment  upon  highway ;  notice  denying  existence  of  highway,     80 

defense  of  easement  of  public  or  third  person,  81 

distinguishable  from  nuisance,  152 

to  right  of  soil  between  high  and  low  water  mark,  384 

for  unlawful  invasion  of  laud  covered  by  water,  412 

by  taking  water  from  stream  without  compensation,  452 

by  taking  fish,  517 

against  rights  of  warren,  527 

by  fowling  or  angling,  528 

by  sending  dog  after  game,  528 

shooting  from  highway  to  kill  game,  528 

by  forcing  water  on  land  of  another,  547 
by  cattle;  liability  for,                                                                        585,  601 

by  bees,  587 

by  poultry,  591 

by  sow  and  pigs,  593 


750  ^  INDEX. 

by  close-herded  sheep,  594" 

liability  of  owners  of  animals  for,  604 

as  contributory  negligence  in  case  of  injury  by  animal,  631 

TRESPASSER.    See  also  Chilbken. 

liability  for  injury  to;  duty  to,  '                                          30,  32^ 

injury  to,  by  spring  guns  or  traps,  16 

on  public  pier;  liability  for  injury  to,  568 

TRESTLES. 

liability  for  overflow  caused  by,  467 

right  to  fill  up;  causing  overflow,  434 

TRIAL. 

question  for  jury,  as  to  reasonable  safety  of  cover  to  opening  in  side- 
walk, 130 
as  to  care  of  person  injured,  130 
as  to  negligence,  539 
in  respect  to  fire,  668 
as  to  proximate  cause,  658 

TROTTING  PARK. 

licenses  to  use  fences  and  buildings  for  advertiping,  182' 

TROVER. 

for  hive  of  bees,  587 

TUNNEL. 

under  Hennepin  Island;  injury  by,  437 

TURBINE  WHEEL. 

prescriptive  right  to  use,  427 

TURF. 

liability  for  starting  fire  in,  642 

TURNTABLES. 

liability  for  injury  to  children  by,  29 

TWO  CAUSES.     See  also  Proximate  CArss. 

fire  result  of  one  of,  659' 


UNDERGROUND  WATERS.    See  also  Sprinq 

pollution  of,  274 

distinction  between  surface  waters  and,  279 

doctrine  of  prescription  not  applicable  to,  425 

UNINCLOSED  LAND. 

use  of  way  over,  236- 


INDEX.  751 

UNINCORPORATED  TOWN. 

limited  liability  of  for  damage  by  water,  351 

UNION  OF  TITLES. 

to  merge  easeiut-nt,  673 

UNITED  STATES. 

title  of  to  sea  shore  and  banks  and  beds  of  tidal  streams,  371' 

liability  for  use  of  land  under  water  for  ligbtbouse,  380 

rigbt  to  use  soil  under  water  in  aid  of  navigation,  561 

UNRULY  HORSE. 

.    liability  for  death  of  traveler  in  street  caused  by,  144 

UPLAND. 

title  to  and  appurtenant  rights,  384 

rights  of  owner  of  accretion,  396 

USAGE. 

to  create  right.     See  Prescriptio:t. 

as  affecting  fishery  rights,  495 

does  not  justify  fishing  in  another's  waters,  499 

to  establish  right  of  inhabitants  of  locality  to  fishery,  500 

as  affecting  right  of  fishing  in  stream,  502 

USE. 

of  alley,  165 

of  water  by  mill  owner;  priority  of,  b45 

USE  AND  OCCUPATION. 

for  use  of  party-wall,  230 

for  fishing,  499 

USEFULNESS, 

of  easement,  end  of,  674 

USUFRUCT. 

of  bed  of  stream,  644 


VARIANCE. 

between  allegation  and  proof  as  to  dataage  by  water,  433> 

VAULT. 

for  storage  of  coal,  liability  for  defective  covering,  1  lO 

of  privy,  near  street  left  open  and  unguarded,  122 

of  schoolhouse,  defective  construction  ut,  S44 

liabdity  for  percolations  from,  154 

VENDEE.    See  Purchaser. 


752  INDEX. 

VENDOR. 

liability. for  nuisance  after  transfer,  55 

VESSEL. 

injury  to,  by  striking  bottom  of  slip,  369 

old  and  unseaworthy  vessel,  369 

by  defective  bridge,  472 

hindering  passage  of  by  filling  up  flats,  38 1 

power  to  float  as  test  of  navigability  of  stream,  406 

licensed,  use  of  in  fisheries,  495 

scow  platform  is  not,  567 

VIBRATION. 

caused  by  engine  and  machinery  as  a  nuisance,  153 

VICIOUS  ANIMALS.     See  also  Animals. 

liability  for  injuries  by,  604 

trespass  bj^;  liability  of  owners  of  animals  for,  604 

liability  of  owner  of  vicious  dog,  615 

VILLAGE. 

limited  liability  of  for  damage  by  water,  351 

VIRGINIA. 

compact  with  Maryland,  561 

VISITOR. 

shares  in  dskHijerg  with  other  members  of  family,  25 

VOLUME. 

of  water  to  be  passed  through  dam,  547 

WAIVER. 

of  duty  to  provide  fire-escapes,  662 

WALLS.     See  a^s^,  Party-Wall. 

un.safe,  liability  of  owner,  28 

to  prevent  eartlivrork  of  street  from  encroaching  on  premises;  right  of 

action  for,  80 

fall  of,  upon  neighbor's  land,  154 

of  house,  easement  as  to,  171 

recovery  for  new  wall  of  a  house  made  necessary  by  taking  land,  267 

WANTONNESS. 

as  to  running  vessel  upon  net,  538 

WAREHOUSE. 

duty  to  keep  in  safe  condition,  19 

liability  for  death  of  person  entering  through  dangerous  hatchway 

through  unlocked  door,  22 

in  connection  with  elevator,  for  public  use,  391 

effect  of  closing  up  windows  of  on  easement  of  light,  579 


INDEX.  753 

WARNING 

to  appioaching  vessel  of  net.  538 

WARRANTY. 

of  soundness  of  animals,  633 

W^ARREN. 

•what  is;  ri<;lit  to  create,  527 

WASHING  CARRIAGES. 

right  to  use  running  water  for,  441 

WASHINGTON. 

local  laws  and  customs  of  as  to  appropriation  of  water,  448 

WASTE  WATER. 

deed  of  right  to  use,  449 

careless  or  extravagant  use  of,  449 

of  stream;  judgment  defining,  450 

WATCH-DOG. 

vicious;  liability  for  injury  by,  C07 

WATER-BAILIFF. 

suit  by  for  penalty,  536 

WATERCOURSE.    See  also  Watebs. 

what  is,  357 

WATERFOWL. 

use  of  boats  to  obtain,  529 

WATER  FRONT. 

control  of  State  over,  391 

title  to  land  conveyed  along,  393 

W^ATER  PIPES. 

in  street,  injunction  to  restrain,  98 

killing  child  by  rolling  from  pile,  137 

freezing  of;  liability  of  city,  334 

WATER-POWER.    See  also  Waters. 

right  to  damages  for  loss  of  by  obstruction  of  stream,  432 

WATERS. 

interrupting  source  of  well  or  spring,  16 

from  roof  turning  on  neighbor's  laud,  131 

right  to  take  from  well  as  easement,  159 

riglit  to  return  stream  to  ancient  bed,  186 

easement  as  to  outlet,  235 

presumptive  grant  of  right  to  use,  236 

drain  under  ground  conveying  right  to  use,  258 
48 


754  INDEX. 

natural   watercourse;  use  of  to  flow   waters   brought  by  artificial 

means,  258 

easement  in  as  affected  by  negligence,  255 

danger  to  others  from  escape  of,  255 

injury  by  escape  from  pipes  in  building,  256 

care  necessary  in  confinement  of,  438,  440 

in  accumulated  mass,  liability  for  escape  of,  270,  272,  273 

liability  for  injury  in  permitting  escape  of,  430 

declaring  stream  public  highway  by  statute,  257 

right  to  detain  in  pond  for  water  supply,  257 

use  of  stream  for  navigation,  257 

cast  by  dam  upon  lower  mine,  258 

duties  respecting  and  rights  therein,  269 

surface  and  percolating  water  and  artificial  drainage,  269 
distinction  between  the  rights  in  surface  and  subterranean  waters,  279 
duty  of  municipal  corporations  not  to  cast  filth  of  sewers  upon  lands 

of  others,  289 
duty  of  city  in  controlling  surface  or  percolating  water  and  in  sup- 
plying water  artificially,  304 
private  watercourse;  casting  sewage  into,  291 
under  what  circumstances  city  liable  for  damage  by  water,  325 
flow  of,  interfering  with,  7 
along  natural  bed,  obstruction  of,  256,  460 
obstruction  by  bridge,  468 
right  to  have  stream  unobstructed,  355 
estoppel  as  to  flowage  right,  258 
waters  artificially  brought,  in  natural  watercourse,  258 
right  to  erect  barriers  against,  300,  435,  461 
barriers  against  surface  waters  in  cities,  303 
surface  water,  obstruction  of,  258 
prevention  by  wall,  258 
grading  of  surface  to  change,  301 
relief,  in  case  of  obstruction  to  flow  of  stream,  468 
by  indictment  or  information,  468 
individual  right  to  abate,  469 
private  right  of  action  for  obstructing  watercourse,  471 
jurisdiction  of  equity  over  obstruction,  476 
liability  for  permitting  to  stagnate,  304 
navigable;  what  are,  370 
abandonment  of  navigability,  523 
of  States,  372 
tidal  streams,  373 
non-tidal  navigable  rivers,  375 
title  of  national  or  state  government  in  sea  shore  and  in  the  banks 

and  beds  of  tidal  streams;  title  of  riparian  owner,  375 

right  of  use  without  compensation  to  riparian  owner,  386 

right  of  free  fishing  in,  508 


INDEX.  755 

control  of  municipal  corporations  over  shores  and  banks;  duty  of 

care  of  structures  thereon,  390 

title  to  land  conveyed  alono;  a  water  front,  393 

alluvion,  accretion  and  dereliction,  396 

ri,<iht  to  restore  flow  by  removing  accretions,  401 
floatable  and  private  streams;  title  of  riparian  owner;  reasonable  use: 

dams  and  mills;  log  driving,  402 

floatage  of  logs  on,  402,  549 

sluiceways  past  dam,  necessity  of,  550 

sufficiency  of,  552 

duty  of  owner  of  dam  to  make,  549 

ownership  of  watercourse,  357 

of  spring,  453 

percolation  of,  269 

from  vault,  liability  for,  1 54 

duty  of  owner  of  city  lands  as  to,  304 

from  gutters  and  catch  basins  in  highway,  350 

pollution,  as  a  nuisance;  right  of  action  for,  80 

of  creek  from  barn,  8 

by  washing  of  soil  from  cultivated  land,  9 

by  sewage,  291 

by  tenants,  liability  of  landlord,  45 

of  wells  and  springs,  287 

of  underground  waters,  155,274 

by  refuse  of  mine,  155 

injunction  to  prevent,  293 

riparian  rights  in  Pacific  States;  diversion,  443 

use  of  waters  to  supply  cities,  451 

remedy  for  diversion  of  flowing  water,  455 

surface,  269 

barriers  against  in  cities,  303 

preventing  flow  of  by  wall,  258 

distinguished  from  subterranean,  279 

duty  of  cities  to  control,  304 

duty  of  owner  of  city  lands  as  to,  304 

use  of  for  purposes  of  hunting,  504,  507 

rights  of  upper  and  lower  mill  owners,  544 

right  to  lower  outlet  and  draw  down  water  of  natural  pond  or  lake,      547 

"WATER   SUPPLY. 

duty  of  company  to  furnish  pipes  to  citizens,  309 

selection  of  person  to  make  connections,  309 

of  cities;  use  of  waters  for,  451 

WAY.     See  also  Highways;  Right  of  Wat. 

negligence  in  use  of  or  interruption  of,  243 

acquiescence  in  use  of,  244 

license  to  build  arch  over  way  does  not  excuse  its  obstruction,  244 


756  INDEX. 

WELL. 

interrupting  supply  of,  1ft 

near  line  of  street,  liability  for  leaving  unguarded,  117 

liability  for  draining,  257 

by  excavation,  266 
pollution  of,                                                                                         274,279 

injury  to  by  sinking  neighboring  well,  282 

liability  for  diversion  of  water  from  stream  by,  SOS 

duty  of  city  to  make  examination  of  water  of,  308 

WHALE. 

custom  as  to  fishery,  49ft 

WHARVES. 

riparian  rights  as  to,  SSS' 

right  to  make,  358 

between  high  and  low  water  mark;  exclusive  right  to  erect,  383 

extent  of  right  to  build  out,  384 

right  to  build  in  Iowa  below  high-water  mark,  38ft 

right  of  City  of  New  Orleans  to  build,  387 

right  of  State  to  erect,  391 

in  San  Francisco  Bay  as  encroachment  on  soil  of  State,  388 

power  to  exclude  navigation  by,                                           '  381 

landing  place;  duty  of  city  to  establish,  390 
legislative  regulation  of  use  of  land  between  high  and  low  water  mark,  390 

duty  to  keep  in  safe  condition,  19 

duty  of  city  to  keep  in  repair,  390- 

liability  for  defect  in,  48 

liability  of  city  for  injury  at,  344-. 

duty  of  city  to  owner  of  floating  coal  yard,  391 

when  a  nuisance,  477 

unlawful  interference  with  approach  to,  561 

public  and  private  landings,  563> 

liability  of  wharf  owner  or  occupier,  566 

boat  as  part  of  wharf,  567 
wharfage  fees  and  charges,                                                                559,  568 

wharfage  tax,  power  to  impose,  391 

WHEEL. 

liability  of  master  for  leaving  uncovered,  148; 

WHIP. 

frightening  of  horse  by  snapping,  611 

WIFE. 

agency  of  husband  in  arbitration  as  to  cost  of  party- wall,  SIS- 
WILD  ANIMALS.     See  Animals. 

WILD   CREATURE. 

ownership  of,  58ft 


INDEX.  757 

WILD-FOWL. 

right  to  shoot  from  boat  and  to  decoy,  504,  505 

frightening  by  discbarge  of  gun;  liability  for,  506 

right  of  shooting  upon  the  water,  •  512 

WILLAMETTE  RIVER. 

erection  of  bridge  over,  464 

WILLFULLY  SETTING  FIRE. 

penalty  for,  646 

WIND. 

as  intervening  cause  of  loss  by  fire,  642,  643,  653,  657 

change  of  as  an  intervening  cause  in  case  of  fire,  654 

WINDOW. 

improper  enlargement  of,  255 

closing  or  altering  as  affecting  right  to,  255 

closing  up;  effect  on  easement,  579 


WIRE-ROPE  FENCE. 

liability  for  damage  to  cattle  by. 


597 


WIRES. 

preventing  extinguishment  of  fire,  668 

WITNESSES. 

as  to  quantity  of  water;  competency  of,  434 

WOMEN. 

driving  on  highway,  duty  toward,  31 

care  required  of,  31 

WOOD. 

destruction  of  by  fire  set  by  locomotive,  666 

WOODLAND. 

liability  for  damage  to  by  fire,  644 

liability  for  setting  on  fire,  643 

pK)hibiting  burning  of,  660 

WORKHOUSE. 

liability  of  city  for  management  of, '  347 

WORKSHOPS. 

requirement  of  fire-escapes  upon,  661 

WRIT. 

of  right,  limitation  of,  176,  177 

WRONGFUL  ACTS. 

of  lliird  persons;  liability  for,  149,  368 


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